Appendix — City of Philadelphia v. Concerned Citizens
Supreme Court brief1988
Ask Donna
What actually matters in this document.
Text
o8& -] "| Supreme Court, Uf
43 FILED
JUL 25 1988
No -
: JOSEPH F. SPANIOL, JR,
Sc ee
ANSE OD
In the Supreme Court
of the Gnited States
OCTOBER TERM, 1987
THE CITY OF PHILADELPHIA, and
JAMES STANLEY WHITE, in his capacity as
MANAGING DIRECTOR, and
WILLIAM J. MARRAZZO, in his capacity as
WATER COMMISSIONER,
Petitioners,
CONCERNED CITIZENS OF BRIDESBURG, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
SEYMOUR KURLAND, CITY SOLICITOR
A Member Of The Bar Of This Court
DENISE D. COLLIERS,
Divisional Deputy City Solicitor
PATRICK K. O'NEILL,
Assistant City Solicitor
City of Philadelphia, Law Department
1540 Municipal Services Building
15th Street & J.F. Kennedy Boulevard
Philadelphia, PA 19102-1692
(215) 686-5233
Counsel for Petitioners.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 87-1092
CONCERNED CITIZENS OF BRIDESBURG;
COPPOLA, JAMES; KUMOSINSKI, ROBERT; PTAK,
MIA; COPPOLA, KATHLEEN; HAGENDEY, HARRY;
HAGENDEY, KATHLEEN; RICKEY, ELIZABETH;
PFEIFFER, FRANCES; PFEIFFER, JOSEPH;
LUDIGAN, EDWARD; LES, ANTHONY; MITCHELL,
ETHEL R.; FINNEGAN, CHARLES A.; BUTLER,
MICHAEL; LEWANDOWSKI, AL; LEWANDOWSKI,
LINDA; DYLINSKI, KAREN; COMBS, CHARLES, H.;
MARINUK, ETHEL; ARENWEH, KAREN;
PAWLOWSKA, CECILIA; SHORT, DOLORES;
DOMBROWSKI, VINCENT; PORTONI, BARBARA
LYNN; ELTON, MARY; GROFF, RUTH C.; BURNS,
ANNA-MAY; DONACHIE, EDNA; KINGSTON, EDNA;
FOSTER, DENNIS J.; CHARLTON, KELLY; HAUG,
MARK D.; PIERGROSSI, TILLIE; LARSEN, JOE;
LARSEN, SUE; JOHN WATERS AUTO SALES; SILEO,
RICH; ANTONELLI, AGNES; MANTICI, ALBERT;
PORTONE, ROBERT J.; SCHMIDT, THELMA; LONG,
BETTY; FRONCEH, MARK; FRANCEK, TONI];
CONCEPTAL, BILL; CONCEPTAL, DEL; WOLK,
LINDA; FERN, CLAIR; McGOVERN, PEARL;
KOZLOWSKI, LOUIS; PUSICZ, GELWIN; RISPO,
JOYCE; SOUTHERLAND, STACEY; AUERWECK,
TINIA; AUERWECK, ELIZABETH; MARINUK,
ERNEST; YODIN, T.; MOSCICKI, CYNTHIA; RESPO,
JAMES O.; GORSKI, MARIE; JAMES, FLORENCE;
JAMES, JOE; ROMER, ANGEL; NOVAK, STEPHANIE;
NOVAK, NELLIE; O’DONNEL, SUE; O'DONNELL,
BILL; PIHALA, EDWARD, SR.; McLAVERTY, JOHN;
HILL, BENNETT; CALO, ANTHONY; WILLIAM, C.;
A-1
A-2
FLANAGEN, ROBERT; REKALA, BOBBY;
KUMOSINSKI, MAUREEN; PAWLOSKI, ANNA M.;
PAWLOSKI, STANLEY M.; LISICKI, MICHAEL M_;
LISICKI, LINDA A.; KUMOSINSKI, EMILY;
McMASTER, NANCY; ELTON, MARY; KUMOSINSKI,
FRANK; PALKA, ANDY; HOWARD, AMEY E.;
COPPOLA, KATHERINE; GORDON, JOSEPHINE;
KONOPKA, ANNA; KURPASKA, ARLENE;
PRENDERGAST, JOHN; PRENDERGAST, BETTY;
LERMAN, PHIL; LERMAN, ESTHER; FLYNN, LINDA;
WAGNER, VIRGINIA; JAMES, PAULINE; HAYES,
JUSTINE; BINGEL, PETER; BINGEL, JOAN;
PARCALE, MICHAEL; PALKA, ANDY; MASON,
HELEN; PEOCCAINERI, FLORENCE; MALLOY,
WILLIAM; HOOD, WILLIAM R.; RORENBERGER,
HERB; MORONESE, WILLIAM; RENFE, JACK;
SMITH, PERRY M.; SVITAK, JOHN; ATKINSON,
JOHN; STARK, MICHAEL H.; PRINCE, WENDY;
BERGER, DOLORES; BERGER, STANLEY; HIGHAM,
BETTY; COLLINS, MARY LUCY; KIRBY RONNIE;
GOGOJ, MARY; MELLEY, WILLIAM; CASEY, ELLEN;
GIBSON, SHARON; CUICH, LISE; FRONCEK, LINDA;
PALKA, RITA; PARTTEZZIA, JACQUELINE;
KOZLOWSKI, WALTER; SERPICO, CHRISTINA;
McKINLEY, ELEANOR; BYRME, STEPHIE; TURNER,
SHEN; and YODER, MARY
Vv.
PHILADELPHIA WATER DEPARTMENT; THE CITY
OF PHILADELPHIA; MARRAZZO, WILLIAM J., in his
capacity as Water Commissioner of Philadelphia;
WHITE, JAMES STANLEY, in his capacity as
Managing Director of the City of Philadelphia; ROHM
& HAAS COMPANY; and ALLIED CORPORATION
CITY OF PHILADELPHIA,
WILLIAM J. MARRAZZO and
JAMES STANLEY WHITE,
Appellants
A-3
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 85-0014)
Argued October 20, 1987
Before: HIGGINBOTHAM, SCIRICA and
GARTH, Circuit Judges.
Assigned December 21, 1987
(Filed March 31, 1988)
HANDSEL B. MINYARD, ESQ.
City Solicitor
DENISE D. COLLIERS, ESQ. (ARGUED)
Divisional Deputy City Solicitor
FREDERICK C. BADER, ESQ.
Assistant City Solicitor
City of Philadelphia Law Department
1540 Municipal Services Building
15th Street & John F. Kennedy Boulevard
Philadelphia, PA 19102-1692
Attorneys for Appellants
JEROME BALTER, ESQ. (ARGUED)
Public Interest Law Center of Philadelphia
125 South 9th Street
Suite 700
Philadelphia, PA 19107
Attorney for Appellees
es ts
A-4
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This appeal rises from an action brought by the residen-
tial neighbors of an urban sewage treatment facility. The
appeal concerns a contempt citation issued against appellants
(together, “the City” or “Philadelphia”) for violating an injunc-
tion previously entered by the district court. We hold that the
district court at all times had federal subject matter jurisdic-
tion over this action and that it did not err when it held
Philadelphia in civil contempt. Accordingly, we will affirm the
judgment of the district court in all respects.
I. BACKGROUND
Appellees, a community organization named the Con-
cerned Citizens of Bridesburg and the individual residents
who constitute it (collectively, “the Citizens”) brought this
action in 1985 under the citizen lawsuit provision of the
federal Clean Air Act, 42 U.S.C. § 7604 (1982). The Citizens
live in the Bridesburg section of Philadelphia. Their neigh-
borhood surrounds the Northeast Water Pollution Control
Plant (“the Northeast Plant”), a sewage treatment and dis-
posal facility that serves the northeastern areas of Philadel-
phia. The Citizens’ action alleged that Philadelphia was oper-
ating the Northeast Plant in violation of state and municipal
odor regulations that are incorporated in the Pennsylvania
State Implementation Plan (“the Pennsylvania SIP”), 40
C.ER. § 52.2020 (1987). The Pennsylvania SIP is a federal
regulation promulgated pursuant to the Clean Air Act, 42
U.S.C. § 7610 (1982). The action went to trial in May, 1986.
Two months later, the district court, in an order that was
accompanied by a comprehensive opinion, enjoined Philadel-
phia from, inter alia, operating the Northeast Plant in vio-
lation of the applicable odor emission regulations. Concerned
Citizens of Bridesburg v. City of Philadelphia, 643 F. Supp.
A-5
713, 730-31 (E. D. Pa. 1986). Philadelphia took no appeal
from this injunctive order.
On October 14, 1986, the Citizens moved that Philadel-
phia be found in civil contempt for violating the district
court’ injunction. At the hearing on this motion, the Citizens
presented evidence demonstrating that, since August 1, 1986,
air pollution inspectors working for the City of Philadelphia's
Air Management Services had issued twenty-eight notices of
violation against the Northeast Plant. During the time period
from August | through October 14, the Northeast Plant had
also been notified of additional resident complaints, filed pur-
suant to the injunction, for which Air Management Services
did not issue odor violation notices.
On January 28, 1987, the district court found that Phila-
delphia had “repeatedly” violated the injunction and declared
the City to be in civil contempt. Concerned Citizens of Brides-
burg, Civil No. 85-14, mem. op & order (E.D. Pa. Jan. 28,
1987), reprinted in Appendix (“App”) at 1967-82. To coerce
Philadelphia to comply with the injunction, the district court
at this time imposed a civil contempt sanction. It required
Philadelphia (1) to employ an independent engineer to under-
take a comprehensive study of the Northeast Plant and to
make recommendations for the prevention of malodorous
emissions therefrom, and (2) to pay $10,000 into the district
court registry whenever the City violated the terms of the
injunction three or more times within any thirty-day period.
The district court also stated that if compensatory damages
were subsequently awarded to persons injured by Philadel-
phia’s contumacious actions, such damage awards would be
defrayed by any coercive penalties that Philadelphia had paid
into the district court's registry. Philadelphia took this appeal
from the contempt judgment.
II. SUBJECT MATTER JURISDICTION
The first issue that we must address concerns the juris-
dictional basis of the district court's adjudication of the under-
lying dispute. Since this is a question of law, our standard of
review is plenary.
A-6
From the time the Citizens first filed their complaint,
Philadelphia has contested the district court's subject matter
jurisdiction over the action. The district court first dealt with
this issue when it denied Philadelphia's pretrial motion to
dismiss on the grounds that the odor regulations in the Penn-
sylvania SIP were invalid and unenforceable. Concerned Citi-
zens of Bridesburg v. Philadelphia Water Dep't. Civil No
85-14, mem. op. & order (E.D. Pa. Apr. 23, 1985), reprinted in
App. at 122-43. Philadelphia renewed this motion at the start
of trial. Joint Motion Of Defendants And Defendant-Inter-
venors For Summary Judgment Or In The Alternative For
Dismissal, reprinted in App. at 389-91. The district court
denied it from the bench.
After the trial was completed, the United States Environ-
mental Protection Agency (“EPA”) on May 20, 1986, pub-
lished a regulation deleting the odor regulations from the
Pennsylvania SIP. 51 Fed. Reg. 18,438-40 (1986), reprinted in
App. at 1345-47. This regulation took effect on June 19, 1986.
Notwithstanding this amendment to the regulatory scheme,
the district court, in its judgment of July 28, 1986 held that it
had subject matter jurisdiction over the Citizens’ federal
claims because they were valid at least until after the trial was
completed. Concerned Citizens of Bridesburg, No. 85-14, op. &
order at 33-34 (E.D. Pa. July 28, 1986), reprinted in App. at
1397-98. In addition, the district court found that the Citi-
zens complaint implicitiy made out a claim of common law
nuisance sufficient to give the district court subject matter
jurisdiction. Id. at 37, reprinted in App. at 1401. These hold-
ings were aspects of the judgment that Philadelphia did not
appeal. Nonetheless, it now attempts, on this appeal from the
contempt judgment of January 28, 1987, to attack collaterally
the district court's legal conclusions regarding subject matter
jurisdiction.
Philadelphia's claim that the district court lacked subject
matter jurisdiction to enter the underlying injunction is now
moot. On December 18, 1987, after we heard argument on
this appeal, another panel of this Court held that the EPA's
attempt to modify the Pennsylvania SIP by directly deleting
4-7
the odor regulations was procedurally invalid under the ap-
plicable section of the Clean Air Act. Concerned Citizens of
Bridesburg v. United States EPA, 836 F. 2d 777 (3d Cir. 1987).
The decision means that the EPA’s attempt to delete the odor
regulations from the Pennsvyivania SIP is, and has always
been, a legal nullity. See, e.g.. United States v. Larionoff. 431
U.S. 864, 873 n. 12 (1977); Manhattan General Equip. Co. v.
Commissioner, 297 U.S. 129, 134 (1936) (“A regulation which
_.. Operates to create a rule out of harmony with the statute is
a mere nullity”). Accordingly, the district court's original pre-
trial determination that the Citizens’ complaint alleged a cog-
nizable federal claim under the Pennsylvania SIP. Concerned
Citizens of Bridesburg, Civil No. 85-14, mem. op. and order at
13 (E.D. Pa. Apr. 23, 1985) (“it is clear bevond doubt that both
the state and city odor regulations are currently part of the
Pennsylvania SIP that has been approved by the EPA”), re-
printed in App. at 135, is legally correct in this Circuit.
In light of the legal developments since this appeal was
briefed and argued, we will not determine whether Philadel-
phia could collaterally attack the district court's subject matter
jurisdiction in this appeal from a contempt judgment. We also
will express no opinion regarding the hypothetical question
whether the district court would have had subject matter
jurisdiction over the Citizens’ action if EPA had properly res-
cinded the odor regulations contained in the Pennsvivania
SIP after trial but before the district court entered its final
judgment in the underlying action.
Ill. THE CONTEMPT JUDGMENT
Philadelphia claims that, because it did not violate the
injunction, the contempt judgment was entered in error. We
disagree. The record amply demonstrates that the Citizens
satisfied their burden of showing the City’s civil contempt by
“clear and convincing evidence,” Fox v. Capital Co., 96 F. 2d
684, 686 (3d Cir. 1938), for “there is (no) ground to doubt the
wrongfulness of the (City’s) conduct” between the time of the
injunctive order and the date the contempt judgment was
entered. Id.; cf. Quinter v. Volkswagen of Am., 676 F. 2d 969,
A-8
974 (3d Cir. 1982) (“Although it came within a scintilla of
doing so, (plainuff) Volkswagen has not satisfied the clear and
convincing evidence standard set forth by this circuit in
es
The City’s second claim is that, since the record con-
tained no evidence of the Citizens’ actual losses, the district
court erroneously imposed a coercive penalty for civil con-
tempt. This claim rests upon a misreading of McDonald’
Corp. v. Victory Investments, 727 F.2d 82 (3d Cir. 1984). In
that decision, we explained that “civil contempt may be em-
ployed to coerce the defendant into compliance with the
court's order and to compensate for losses sustained by the
disobedience. . . . In the latter instance, a fine may be imposed
payable to the complainant, but it must be based upon evi-
dence of complainant's actual loss” Id. at 87 (emphasis
added ): accord Latrobe Steel Co. v. United Steelworkers of Am.,
AFL-CIO, 545 F.2d 1336, 1344 (3d Cir. 1976). The City's
argument gets the distinction between coercive and compen-
satory contempt judgments exactly backward. See Brief of
Appellants at 42-43. Since the district court explicitly im-
posed a coercive sanction against Philadelphia, Concerned
Citizens of Bridesburg, No. 85-14, mem. op. at 12 (£.D. Pa.
Jan. 28, 1987), reprinted in App. at 1978, no evidence of actual
loss by the Citizens was required.
The City’s final claim argues, inter alia, that the pos-
sibility that compensatory damages will be paid out of coer-
cive fines imposed pursuant to this contempt judgment runs
afoul of the sections of Pennsylvania’s Political Subdivision
Tort Claims Act that apply to actions against local parties, 42
Pa. Cons. Stat. Ann. §§ 8541-64 (Purdon 1982). Since the
Citizens’ underlying action is based upon the federal Clean
Air Act and the contempt order upon Fed. R. Civ. P. 70,
however, the Supremacy Clause defeats the City’s argument.
See U.S. Const. art. VI, § 2.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the district court.
A-9
Garth, J., concurring.
I am in full accord with the majority opinion, with the
exception of the manner in which it has chosen to reject the
City of Philadelphia's claim that the City need not comply
with the district court's contempt order because that order
runs afoul of the Pennsylvania Tort Claims Act, 42 Pa. Cons.
Stat. Ann. §§ 8541-64 (Purdon 1982). The City’s argument is
predicated on its anticipation that some of the monies it is
required to pay as a result of the district court's contempt
order may ultimately be utilized to compensate property
owners.
The majority has resolved this issue by invoking the
Supremacy Clause of the United States Constitution. I have
difficulty understanding the relevance of such a disposition in
the context of this case. Moreover, in my opinion, it is inap-
propriate to resort to a constitutional analysis here in order to
resolve the City’s contentions. While the City may very well
be immunized by the Pennsylvania Tort Claims Act where a
tort has been committed by the City, the Act does not purport
to, nor can it, immunize the City from paying fines imposed
by the district court for the City’s failure to comp!y with the
courts order. In short, the Pennsylvania Tort Claims Act sim-
ply does not apply to a court’s valid imposition of a coercive
penalty.
As a consequence, the City’s invocation of Pennsylvania's
Tort Claims Act is without merit, and must be resolved
against the City. However, I do not believe the majority is
correct in deciding this matter on a constitutional ground
where a more narrow resolution of this issue may be based on
the inapplicability of the Pennsylvania statute. See Hagans v
Lavine, 415 U.S. 528, 543 (1974).
In all other respects, I concur in the majority's opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
a
A-10
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 87-1092
CONCERNED CITIZENS OF BRIDESBURG, et al.
y
PHILADELPHIA WATER DEPARTMENT, et al.,
Appellants
(D.C. Civil No. 85-0014)
SUR PETITION FOR REHEARING
Present: GIBBONS, Chief Judge, SEITZ,
HIGGINBOTHAM, SLOVITER, BECKER,
STAPLETON, MANSMANN, GREENBERG, SCIRICA and
COWEN,
Circuit Judges.
The petition for rehearing filed by appellant in the above-
entitled case having been submitted to the judges who par-
ticipated in the decision of this Court and to all the other
available circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having asked for |
rehearing, and a majority of the circuit judges of the circuit in
regular service not having voted for rehearing, the petition for
rehearing by the panel and the Court in banc, is denied.
BY THE COURT:
/s/
Circuit Judge A. Leon Higginbotham
Dated: April 25, 1988
A-1]
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 87-1092
CONCERNED CITIZENS OF BRIDESBURG, et al.
y
PHILADELPHIA WATER DEPARTMENT. et al.,
CITY OF PHILADELPHIA, et al., Appellants
Pursuant to Rule 41(b) of the Federal Rules of Appellate
Procedure, it is ORDERED that issuance of the certified judg-
ment in lieu of formal mandate in the above cause be, and it is
hereby stayed until July 24, 1988.
/s/
Circuit Judge A. Leon Higginbotham
Dated: April 26, 1988
A-12
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF : CIVIL ACTION
BRIDESBURG, et al.
vV.
CITY OF PHILADELPHIA, et al. 7 NO. 85-14
MEMORANDUM OPINION AND ORDER
VanARTSDALEN, S.J. January 28, 1987
By order dated July 25, 1986, following a full trial on the
merits, the City of Philadelphia was enjoined from maintain-
ing and operating the Northeast Water Pollution Control Plant
(NeWPCP) in violation of the emission provisions of the
Pennsylvania Air Pollution Control Act, 35 Pa. Stat. Ann.
§ 4001 et seg., the Philadelphia Air Management Code
§$§ 3-102(3), (5), (25), and 3-201(a)(3), and the respective
regulations promulgated pursuant to the Pennsylvania Air
Pollution Control Act and the Philadelphia Air Management
Code. (Court Order, July 25, 1986, { 1). The City was further
enjoined from maintaining and operating the NeWPCP “in
such a way or manner as to cause the emission into the
ambient air of any malodor of such intensity, quantity and
concentration as unreasonably to cause injury, harm, an-
noyance, or discomfort to persons of normal sensibilities who
are not on the land of the Northeast Water Pollution Control
Plant.” (Court Order § 2). The order directed that whenever
the NeWPCP was notified by Air Management Services of the
City of Philadelphia of a violation of the odor regulations of
either the Philadelphia Air Management Code or the Pennsy|-
vania Air Pollution Control Act, the City’s Water Department
was required to conduct a comprehensive investigation of the
source and cause of the violation and take all reasonable
measures to eliminate the violation and any potential for
repetition. (Court Order { 3). The NeWPCP and the Philadel-
A-13
phia Water Department were then required to jointly file with
the court, within seventy-two hours of receiving notice of a
violation from Air Management Services, a detailed written
report showing full compliance with the order's directive to
conduct an investigation and attempt to eliminate the cited
odor emission violation. (Court Order { 3). The NeWPCP and
the Water Department were also ordered to file a report with
this court whenever a written complaint of an odor emission
violation by the NeWPCP was made and signed by three
residents of the community to Air Management Services,
irrespective of whether, upon investigation, Air Management
Services failed to find and notify the NeWPCP of a violation.
(Court Order § 4).
The order provided that any party having a proper inter-
est in the case could seek a citation for contempt “in the event
of any violation of any portion of this order” and that a prompt
hearing for contempt would be held, upon request, in the
event that three or more reports as mandated by paragraph 3
and/or 4 of the order were required to be filed with this court
within any thirty-day period. (Court Order § 5).
On October 14, 1986, the plaintiffs filed a motion to hold
the City in civil contempt of the July 25, 1986 Order, due to
alleged continuing frequent episodes of the NeWPCP emit-
ting 1oul odors into the community. A hearing was held on
plaintiffs’ motion, commencing on December 1, 1986.
The evidence presented at the hearing and subsequently
conceded to in defendants’ proposed findings of fact and con-
clusions of law show that between August 1, 1986 and the
date of the hearing, Air Management Services issued twenty-
eight notices of violation of the Air Management Code, based
upon inspections conducted by air pollution inspectors. The
NeWPCP was also notified of an additional number of “resi-
dent complaints” filed pursuant to paragraph 4 of the July 25,
1986 Order, for which no odor violation notices were issued by
Air Management Services. The plaintiffs argue that the large
number of cited odor violations and complaints of malodor
emissions from the NeWPCP constitute a violation of the
A-14
injunction imposed by this court's July 25, 1986 Order,
thereby requiring a finding of civil contempt.
The City argues it is not in civil contempt of the order
because (1) the plant is well-maintained and well-operated;
(2) the plant has incorporated into its system “state-of-the-art”
air poilution control mechanisms and equipment to reduce
the potential for odors; and (3) the nature, intensity and
causes of the odors do not justify a finding of contempt. In
substance, defendant has contended throughout this litiga-
tion that it is doing the best it can and that it has not and is not
willfully violating its own air pollution control regulations.
Additionally, the City argues that the twenty-eight notices of
violation issued by Air Management Services do not equate to
twenty-eight violations of the July 25, 1986 injunction.
Air Management Services is a division of the Philadel-
phia Department of Public Health which is charged with the
duty of enforcing the Philadelphia Air Management Code and
the Pennsylvania Air Pollution Control Act within the geo-
graphical limits of the City in instances where the Act is more
stringent than the Code. Air Management Services employs
air pollution inspectors who, among other duties, investigate
complaints of violations of the odor regulations of the Air
Management Code and the Air Pollution Control Act. The air
pollution inspectors receive special training in odor detection
as to the type and intensity of odor that would constitute a
violation of the Air Management Code and/or the Pennsylva-
nia Air Pollution Control Act. The Air Management Code
defines “odor” as follows:
Smells or aromas which are unpleasant to persons or
which tend to lessen human food and water intake, inter-
fere with sleep, upset appetite, produce irritation of the
upper respiratory tract or create symptoms of nausea or
which by their inherent chemical or physical nature or
method of processing are or may be detrimental or dan-
gerous to health.
Air Management Code § 3-102(25). Any emission of an
“odor,” as so defined, constitutes a public nuisance under the
A-15
Air Management Code, which, if detected by an air pollution
inspector, would constitute a violation of the Air Management
Code. According to the evidence adduced to the original trial
held in May 1986, an inspector may make a finding of a
violation only if he detects a malodor sufficiently strong to
constitute a violation as of the time of the investigation or
inspection. There are no scientific instruments or tests for
ascertainment of malodors, and a determination of a violation
is based on an individual inspector sensing the violation
through his or her own sense of smell.
During the four-month period following the injunction
imposed on July 25, 1986, Air Management Services issued
28 notices of violation to the NeWPCP. Of those notices, the
intensity of the odors were characterized by the air pollution
inspectors as follows: 13 were for light odors, 3 were for mild
or moderate odors and 12 were for strong odors. The City,
through witnesses employed by the Philadelphia Water De-
partment and the NeWPCP, contends that seven of the vio-
lations were issued for Nocardia-related events; -four were
attributable to equipment failure; three were caused by over-
stockpiling of sludge; five were alleged to be disputed by the
City without specification as to which of the 28 violations
were in dispute and nine were unexplained. Of those nine,
two violation notices were issued for distinct odors, two were
for strong odors, four were for light odors and one was for a
mild odor.
Essentially, the City’s argument appears to be that the
notices issued by Air Management Services for violations of
the Philadelphia Air Management Code do not automatically
equate to violations of the injunction because many of the
notices were issued for only light, mild or moderate odors. In
addition, the City argues that the issuance of a notice of
violation does not automatically constitute a violation of the
injunction because the air pollution inspectors always issue a
notice of violation, whenever, on inspection, they detect any
malodor, no matter how light, fleeting or insignificant.
The City’s assertions are unpersuasive for the following
reasons. First, the record establishes that since the entry of
A-16
the order, there have been no less than 12 occasions when air
pollution inspectors identified strong odors. The evidence
from the hearing is also clear that the City itself acknowl-
edges that there have been frequent occasions since entry of
the order when there have been malodors emitted from the
plant in excess of what the City contends are normal and
unavoidable odors arising from a sewage treatment plant.
Second, the injunction expressly prohibits the emission of
odors that “cause injury, harm, annoyance or discomfort to
persons of normal sensibilities.” To be a violation of the Phila-
delphia Air Management Code, the detected odor must be
“unpleasant to persons” or must, “tend to lessen human food
and water intake, interfere with sleep, upset appetite, produce
irritation of the upper respiratory tract or create symptoms of
nausea or ... be detrimental or dangerous to health.” Air
Management Code § 3-102(25).
Based on this definition, an odor that is cited by Air
Management Services as a violation of the Air Management
Code is, by its very nature, an odor causing “injury, harm,
annoyance or discomfort to persons of normal sensibilities.” A
violation of the Air Management Code would therefore also be
a violation of the prohibition contained in the injunction,
regardless of whether a detected odor is classified as light,
mild or moderate. Based on the foregoing, there can be
no doubt that the injunction against emissions of malodors
has been violated many times in the four months between
the date of the issuance of the injunction and the contempt
hearing.
The City argues that, despite the issuance of numerous
odor emission violations, it should not be cited for civil con-
tempt of the July 25, 1986 Order because the majority of the
malodor violations issued since July were “due to factors
outside the realm of prevention of or control by defendants,
including the occurrence of Norcadia |sic] ... as well as the
mechanical failure of two components of the City’s equipment
and two mechanical failures of an independent contractor's
dewatering equipment.” (Defendant's response to plaintiffs’
post-hearing memorandum at 3-4).
A-17
To establish civil contempt, it is not necessary to estab-
lish that the noncomplying party acted willfully or in bad
faith. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191
(1949); Delaware Valley Citizens’ Council for Clean Air v.
Commonwealth of Pennsylvania, 533 F. Supp. 869, 880 (E.D.
Pa. 1982). The absence of willfulness does not relieve a find-
ing of civil contempt because the purpose is not to punish the
contemnor but rather to enforce compliance with an order of
the court or to compensate for losses or damages sustained by
reason of noncompliance. McComb, 336 U.S. at 191; United
States v. United Mine Workers, 330 U.S. 258, 303-304 (1946);
Quinter v. Volkswagen of America, 676 F.2d 969 (3d Cir.
1982). In order to find a party in civil contempt, there must be
a specific and definite order of court which that party has
violated, having actual knowledge of the order and the ability
to comply. Thompson v. Johnson, 410 F. Supp. 633, 640 (E.D.
Pa. 1976), aff'd, 556 F.2d 568 (1977); United States Steel Corp.
v. United Mine Workers of America, 393 F. Supp. 942, 947
(W.D. Pa. 1975); Frankford Trust Co. v. Allanoff; 29 Bankr.
407, 409 (E.D. Pa. 1983). Thus, where a valid order has been
entered, the party enjoined has the duty to comply with the
order.
In this case, there is no contention that compliance with
the July 25, 1986 Order is impossible or even not feasible. The
defendant City argues that it is impossible to operate a sewage
disposal plant in such a manner that it will not emit any odors,
and that there will always be some persons who will find even
such normal and inevitable odors objectionable. However,
there is no contention that a sewage disposal plant cannot be
operated without emitting offensive and objectionable odors
that “cause injury, harm, annoyance or discomfort to persons
of normal sensibilities.” Thus, it is quite apparent from all the
evidence that was presented at the hearing that the City has
repeatedly violated the July 25, 1986 injunction during the
past four months.
Since the purpose of a civil contempt proceeding is to
bring about future compliance with an order of court and to
compensate for past violations of the order, where there is a
A-18
finding of civil contempt, all of the surrounding circum-
stances of the case should be considered when determining
an appropriate remedy. The court should consider among
those factors, the extent to which the party in contempt may
be considered to be at fault; what reasonable steps could and
should have been taken to prevent the violations from occur-
ring, what steps can be taken to prevent future violations, and
how extensive the violations were, both in frequency and
extent of harm.
In fashioning remedial relief in civil contempt proceed-
ings, the district court is vested with wide discretion. In re
Arthur Treachers Franchisee Litigation, 689 F.2d 1150, 1158
(3d Cir. 1982); Delaware Valley Citizens Council for Clean Air,
533 F. Supp. at 882. The relief granted may be compensatory
and/or coercive and often takes the form of a fine in the
amount of the damages sustained by a petitioner. See, e.g.,
Quinter v. Volkswagen of America, 676 F.2d at 975; Thompson
v. Johnson, 410 F. Supp. at 633. In exercising its remedial
powers, a court may also require a contemnor to perform
various affirmative acts, even though those actions were not
mandated by the underlying decree. In re Arthur Treacher’s
Franchisee Litigation, 689 F.2d at 1159; NLRB v. J.P. Stevens &
Co., Inc., 563 F.2d 8 (2d Cir. 1977), cert. denied, 434 U.S. 1064
(1978); Franklin Mint Corp. v. Franklin Mint, Ltd., 360 F.
Supp. 478 (E.D. Pa. 1973).
In determining appropriate sanctions, | am most con-
cerned with trying to remedy the situation so that there will
not be continuing future violations.
The City has presented evidence, and argues that the
NeWP_| .s_ well-maintained, well-operated and _ well-
designed. Consequently the City contends, in effect, that
although there may have been some violations in the past,
there should be no sanctions imposed, and no finding of
contempt. The difficulty with that argument is that all of the
evidence and all witnesses who testified on the subject agreed
that a properly designed and properly maintained and oper-
ated sewage disposal plant will not emit malodors of the type
prohibited by the injunction and the Air Management Code.
A-19
Consequently, the only logical explanation for the continuing
ongoing violations is that the plant is improperly or inade-
quately designed, maintained and/or operated. In other
words, the sewage disposal plant’s design, maintenance and/
or operation can feasibly and reasonably be improved to the
point where violations, absent some totally unforeseeable,
fortuitous circumstance, will not occur.
Plaintiffs have suggested various possible remedies, in-
cluding an ambitious program whereby the court forces the
City to design and build complete enclosures over all open
areas of the plant. The City continues to contend that it has
spent approximately $300,000,000 in improvements and that
the plant, as presently designed and built, contains the best
“state-of-the-art” odor pollution controls available. Although it
may be that eventually the proposal of plaintiffs will be the
best, or possibly the only way to prevent odors from escaping,
the evidence is insufficient at this stage to require such a
radical program.
The City has proposed that an independent, nationally
recognized engineering entity which specializes in the field of
odor pollution control in sewage disposal plants be appoirted
by the court to conduct a comprehensive survey to determine
what can be done to eliminate the existing odor pollution
problems at the NeWPCP. This is an acceptable proposal
which has been agreed to and expanded upon by the plain-
tiffs. However, because such an evaluation would extend over
a period of at least several months, there is no reason to accept
this as the total solution. An order accompanying this memo-
randum will therefore provide certain additional controls.
Specifically, the order will provide that three or more valid
notices of violation issued by Air Management Services within
any continuous thirty-day period of time shall, without fur-
ther proof, be deemed a violation of the injunction and will
subject the City of Philadelphia to a penalty of $10,000 for
each occasion of three or more such notices, to be placed in a
special fund to compensate the named plaintiffs for the injury
caused.
Although compensation for past violations would be per-
ca tia
A-20
fectly appropriate in this case, the evidence upon which to
base any monetary amount of damages for the harm done is
very scant if existent at all. Nothing in the prior order sug-
gested that any specific penalty would be involved for any
violation and there has been no showing, by way of affidavits
or other competent evidence, of any actual monetary loss or
damages suffered by the plaintiffs due to the continuing
violations.
A finding of contempt does not automatically require the
imposition of sanctions and an assessment of damages
against a contemnor can only be made once actual damages
resulting from the contempt are shown. Thompson v. Johnson,
410 F. Supp. at 643. In addition, any fine imposed for civil
contempt must not exceed the actual damages caused the
offended party by a violation of the court's order, United States
v. United Mine Workers, 330 U.S. at 304; Quinter v. Volks-
wagen of America, 676 F.2d at 975; and the offended party
must prove his or her damages by clear and convincing evi-
dence. Nelson Tool & Machine Co. v. Wonderland Originals,
Ltd., 491 F. Supp. 268, 269 (E.D. Pa. 1980); Thompson v.
Johnson, 410 F. Supp. at 643; aff'd, 556 F.2d 568 (1977).
Since the record is presently void of any evidence suffi-
cient to establish the amount of damages sustained by plain-
tiffs as a result of the violations, compensatory relief for past
violations will not be assessed at this time. This, however,
does not foreclose the possibility of a compensatory fine being
imposed in the future upon a showing, by clear and convinc-
ing evidence, of actual loss suffered by plaintiffs due to the
City’s continued vioiation of the injunction.
I, therefore, conclude that the defendants are in civil
contempt of this court's injunction order of July 25, 1986, and
that the coercive sanctions set forth in the accompanying
order will be imposed.
A-21
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF >: CIVIL ACTION
BRIDESBURG, et al.
Vv.
CITY OF PHILADELPHIA, etal. NO. 85-14
ORDER
Upon consideration of plaintiffs’ motion to declare defen-
dants in civil contempt and after a full evidentiary hearing
and full briefing, for the reasons set forth in the accompany-
ing memorandum, it is
Ordered as follows:
1. Defendants, the City of Philadelphia, James S. White
(Managing Director of Philadelphia), and William J. Manazzo
(Water Commissioner of Philadelphia) are declared to be in
civil contempt of this court's order of July 25, 1986 which,
inter alia, enjoined defendants from maintaining and operat-
ing the Northeast Water Pollution Control Plant of the City of
Philadelphia (NeWPCP) in violation of the Pennsylvania Air
Pollution Control Act and the Philadelphia Air Management
Code and regulations adopted pursuant to said Act and Code;
the said defendants having failed to maintain and operate the
NeWPCP in such a manner as to prevent the emission into
the ambient air of malodors of such intensity, quantity and
concentration as unreasonably to cause injury, harm, an-
noyance or discomfort to persons of normal sensibilities who
are not on the land of the NeWPCP.
2. Henceforth, three (3) or more valid notices of violation
of the Pennsylvania Air Pollution Control Act and/or the Phila-
delphia Air Management Code issued by Air Management
Services within any thirty (30) day period shall be deemed a
violation of the injunction. Upon each such occurrence of
three (3) or more violations within a thirty (30) day period,
the City of Philadelphia shall. pay a coercive penalty of
A-22
—_—
$10,000 into the Registry of this Court, to be held for the
benefit of persons injured or harmed by any violation of the
injunction, the distribution of such sums to be subject to
further order of this court, to be determined by such further
proceedings as may be required.
3. The defendanis shall, within thirty (30) days from the
date of this order, employ, at defendants’ expense, as an inde-
pendent engineering consultant, the firm of Malcolm Pirnie,
Inc. The said firm shall, for all purposes, be entirely indepen-
dent from and impartial toward both plaintiffs and defen-
dants. The said firm shall make a comprehensive, indepen-
dent study of all aspects of odor pollution problems and odor
pollution control and prevention of emissions of malodor
emissions from the NeWPCP. The study shall include, but not
be limited to, the following:
(a) Study each and every phase of the NeWPCP in-
cluding Junction Chamber A, Preliminary Treatment Build-
ing, Primary Settling Tanks (both new and old), Aeration
Tanks (Rotating Biological Contractors), Digesters, Sludge
Dewatering and Thickening, Sludge Lagoons, Scum Incin-
erator, Grit and Screenings Incinerator, Sludge and Ash trans-
portation and disposal, and Ozonator systems. The study shall
include an analysis of the history and future potential for
preventing malodor emissions including the adequacy and
efficiency of both the existing facilities, and the planned and
scheduled repairs and additions.
(b) Evaluation of present maintenance and operating
procedures and the adequacy of the same to prevent malodor
emissions, including the capabilities, staffing, training and
supervision of plant personnel including management per-
sonnel insofar as relevant in prevention of malodor emissions.
The Consulting firm shall have access to all records, logs.
reports and documents involving the NeWPCP of the City of
Philadelphia, and any and all agencies and officers of the City
of Philadelphia, including employment and personnel records
of emplovees, past and present, as well as supervising and
management personnel of the NeWPCP insofar as relevant in
A-23
determining causes, responsibility and remedies for malodor
emissions of the NeWPCP
The Consulting firm may confer with whomever it deems
appropriate including any and all employees of the NeWPCP.
elected and appointed officials of the City of Philadelphia, all
agencies of the City of Philadelphia, any contractors and
suppliers of the NeWPCP. the attorneys for plaintiffs and
defendants (either together or separately), and the individual
plaintiffs and other residents of the City of Philadelphia.
The Consulting firm shall consider and evaluate recom-
mendations, if any are submitted to it, as to methods for
eliminating or reducing malodor emissions.
In the event that the Consulting firm finds that even if
the present plant is, or can be, properly maintained and
operated, malodor emissions in violation of the injunction will
continue, the Consulting firm shall make such recommenda-
tions for changes, additions or improvements as will prevent
such malodor emissions, together ‘vith an estimate of cost and
time for implementing such recommendations.
The Consulting firm shall make a report to the court,
together with copies to the plaintiffs’ and defendants’ attor-
neys within three (3) months from the date of employment.
No portion of the report shall be provided to or discussed with
representatives of either plaintiffs or defendants prior to sub-
mission to the court.
4. All prior terms and conditions of the injunction here-
tofore issued shall remain in full force and effect
BY THE COURT
/s/
Donald W. VanArtsdalen, S.J
January 28, 1987
—————————— eee
A-24
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF : CIVIL ACTION
BRIDESBURG, et al. :
Vv.
CITY OF PHILADELPHIA, et al. NO. 85-14
OPINION AND ORDER
VanARTSDALEN, S.J. July 25, 1986
Findings of Fact
The Northeast Water Pollution Control Plant
1. The Northeast Water Poilution Control Plant (North-
east Plant) is located on a roughly square tract of land, con-
taining approximately forty-five acres. The main entrance is
at the intersection of Wheatsheaf Lane and Richmond Street
in the so-called Bridesburg area of the City of Philadelphia,
Pennsylvania. The Northeast Plant is situated a short dis-
tance south of the Betsy Ross Bridge, and is generally east of
U.S. Route I-95, extending from Richmond Street southeast-
wardly to Delaware Avenue between Castor Avenue and
wewis Street.
2. The neighborhood surrounding the Northeast Plant
contains a mixture of residential, commercial and industrial
land uses. The intervenor-defendants, Rohm and Haas Com-
pany and Allied Corporation, both own and operate large
industrial chemical manufacturing plants in close proximity.
There are also other industries in the vicinity, including a
smelting plant and a rendering plant. Most of the individual
plaintiffs are residents of the neighborhood.
3. The Northeast Plant is a sewage treatment and dis-
posal plant. Its primary function is to process the liquid
A-25
wastes from the sewer systems of the northeastern areas of
Philadelphia. It also receives influent from some sewer sys-
tems serving areas of Bucks and Montgomery counties. Its
daily influent includes both storm sewer and sanitary sewer
liquid wastes. Both of the intervenor-defendants discharge
industrial liquid wastes into sewers that carry the sewage to
the Northeast Plant.
4. The present plant capacity can process 210 million
gallons per day. The industrial wastes processed by the North-
east Plant constitute approximately seven percent of the nor-
mal total dry weather flow of influent. The plant's total capac-
ity is adequate for all present and reasonably foreseeable
future uses.
5. The Northeast Plant has operated as a sewage treat-
ment and disposal plant continuously since at least 1923. In
the early 1950's the piant underwent substantial renovations.
As the result of extensive litigation commenced in 1978 in-
volving the City of Philadelphia, the Environmental Protec-
tion Agency, the Delaware River Basin Commission and vari-
ous other entities and individuals, a consent decree was filed
on May 30, 1979 and approved by Hon. J. William Ditter, Jr.,
of this court on September 21, 1979. The decree required
extensive reconstruction and upgrading of the facilities of the
Northeast Plant in order to comply with various standards,
primarily involving the Clean Water Act, 33 U.S.C. § 1251 et
seq., as to the effluent that was being discharged by the
Northeast Plant into the Delaware River. The capital expendi-
tures by the City of Philadelphia in carrying out the renova-
tions have exceeded Three Hundred Million Dollars. As of the
time of the trial of the present case, most of the planned
reconstruction was completed, and the renovated system was
in operation. Certain malfunctioning equipment remained to
be corrected and some additional processing equipment had
yet to be installed and tested.
6. The Northeast Plant is one of three sewage treatment
and disposal plants located in the City of Philadelphia. These
plants are all under the operation and control of the Water
Department of the City of Philadelphia.
A-26
Procedural Background of the Case
7. The plaintiffs consist of a nonprofit corporation, Con-
cerned Citizens of Bridesburg, and a group of approximately
130 individuals. The individual plaintiffs all live in the
vicinity of the Northeast Plant and allege injury and harm
from malodors being emitted from the Northeast Plant. Con-
cerned Citizens of Bridesburg is incorporated under the laws
of Pennsylvania and its members are residents of the Brides-
burg area of Philadelphia. The complaint was filed on January
3, 1985. Plaintiffs seek to enjoin defendants from operating
the Northeast Plant “in violation of the Clean Air Act, 42
U.S.C. § 7401 et seq.” The sole alleged claim for federal juris-
diction is the “citizen lawsuit provision of the Clean Air Act,
42 U.S.C. § 7604 and 28 U.S.C. § 1331” Neither the com-
plaint nor the amended complaint (filed April 12, 1985) ex-
pressly assert a claim based on any other federal statute, nor
on the basis of any violation of state statutory or common law,
and there is no request contained in the complaint or
amended complaint that the court hear or determine any
state claim on the basis of pendent jurisdiction. The relief
sought is solely equitable injunctive relief.
8. As required by the Clean Air Act, 42 U.S.C. § 7410,
Pennsylvania adopted, and the Administrator of the United
States Environmental Protection Agency (EPA) approved, a
State Implementation Plan (SIP). The Pennsylvania SIP, as
approved (40 C.F-R. § 52.2020), incorporated the Pennsylva-
nia Air Pollution Control Act, 35 P.S. § 4001 et seq., and state
regulations adopted pursuant to the Act, and also incorpo-
rated the Philadelphia Air Management Code and regulations
adopted pursuant to the Code. In substance, both the Penn-
sylvania Air Pollution Control Act and the Philadelphia Air
Management Code, and the regulations adopted pursuant to
the Act and the Code, prohibit malodorous emissions that
constitute an air pollution nuisance, defined in part as being
an emission of an air contaminant (which includes malodors)
that tends to interfere with health, repose or safety or causes
severe annoyance or discomfort or is offensive, objectionable
A-27
or both to persons because of inherent chemical or physical
properties of the emission.
9. Defendants moved to dismiss the complaint contend-
ing that the State and City odor emissions controls could not
properly be included in a federally approved SIP adopted
pursuant to the Clean Air Act, and therefore could not be
enforced in federal court by a citizen’s complaint filed under
42 U.S.C. § 7604. The motion to dismiss was denied by mem-
orandum opinion and order dated April 23, 1985.
10. On May 11, 1985, defendants sought both a recon-
sideration and stay of proceedings. Defendants contended
that EPA recognized that it had exceeded its authority in
approving the Pennsylvania SIP that incorporated by refer-
ence State and City odor regulations and that EPA was in the
process of promulgating a regulation that would withdraw
approval of such portions of the Pennsylvania SIP. Defendants
asserted that when EPA would thus “correct” the error, this
court would lose jurisdiction under the Clean Air Act. The
motions for reconsideration and a stay were denied.
11. On May 2, 1986, after public notice and hearing,
EPA officially approved a revision to the Pennsylvania SIP,
which effectively eliminated from the Pennsylvania SIP all
odor emission control regulations. In so doing, EPA concluded
that such regulations have “no significant relation to the at-
tainment and maintenance of the National Ambient Air Qual-
ity Standards (NAAQS)”’ EPA further concluded that “there is
no direct or indirect relationship between the State odor emis-
sion regulations cited below and any criteria pollutant.” The
revision was to be effective thirty days from date of publica-
tion in the Federal Register. Publication occurred on May 20,
1986 (Fed. Reg. 18438). Although the revision would be effec-
tive as of June 19, 1986, plaintiffs have filed with the Admin-
istrator of EPA a request for a stay pending review. On June
20, 1986, plaintiffs filed a petition for review with the United
States Court of Appeals for the Third Circuit.
12. On March 24, 1986, plaintiffs moved to amend the
complaint to allege a violation of Air Management Regulation
V, Section X—Odors of the Pennsylvania SIP. The stated
A-28
reason for the motion was that this regulation was not pro-
posed for revision or deletion by EPA and would therefore be a
valid basis for this court retaining federal jurisdiction even if
the EPA revision was upheld as valid. Although the motion to
amend was granted, plaintiffs, in fact, never filed the pro-
posed second amended complaint and the case proceeded to
trial on May 5, 1986 without such amendment. In any event,
the EPA revision of the Pennsylvania SIP, as finally adopted,
also eliminated Air Management Regulation V, Section X from
the SIP.
13. On October 22, 1984, more than 60 days prior to
filing this action, plaintiffs notified the then Managing Direc-
tor of the City of Philadelphia, Leo A. Brooks, by certified
mail, of intention to file this action charging the defendants
with violation of the air emission regulations of the Clean Air
Act, 42 U.S.C. § 7401 et seq. The notice expressly advised that
the Northeast Plant would be alleged to be operating in vio-
lation of applicable air emission regulations of the Pennsylva-
nia SIP, including regulations promulgated under the Penn-
sylvania Air Pollution Control Act, 35 P.S. § 4001 et seq., 25
Pa. Code § 123.31, and various specified provisions and reg-
ulations of the Philadelphia Air Management Code. Copies of
this notice were also mailed to the following: William
Ruckelshaus, Administrator of EPA; Thomas Eichler, Admin-
istrator of Region III, EPA; Leo Gonshur, Director of the
Pennsylvania Department of Environmental Resources;
William J. Marrazzo, Commissioner of the Philadelphia Water
Department; Kenneth S. Cooper, Deputy City Solicitor for
Environmental Affairs for the City of Philadelphia; William
Reilly, Assistant Health Commissioner for the City of Phila-
delphia; Richard Thornburgh, Governor of Pennsylvania; W.
Wilson Goode, Mayor of Philadelphia; Nicholas DiBenedictis,
Secretary of the Pennsylvania Department of Environmental
Resources.
14. No notice or copy of a notice was ever sent to the
Attorney General of Pennsylvania. Before a resident of Penn-
sylvania may file a private action under the Pennsylvania Air
Pollution Control Act to abate a nuisance or restrain or pre-
A-29
vent a violation of the Act, thirty days’ notice of intention to so
proceed is statutorily required to be served upon the Attorney
General of Pennsylvania. 35 P.S. § 4010(f).
Odor Pollution Controi
15. Air Management Services, a division of the City of
Philadelphia, Department of Public Health, is charged with
the duty of enforcing the Air Management Code of Philadel-
phia and the regulations promulgated pursuant to the Code.
Air Management Services also enforces the Pennsylvania Air
Pollution Control Act within the geographical limits of the
City of Philadelphia, in the specific instances that the Act is
more stringent than the Code.
16. William Reilly is the Assistant Health Commissioner
for Air Management Services for the City of Philadelphia. He
has held this position since 1972. Air Management Services
employs approximately twelve full-time air pollution inspec-
tors who, among other duties, investigate complaints of air
pollution, including complaints of violation of the odor regula-
tions of the Air Management Code and Air Pollution Control
Act. Air pollution inspectors are available, or at least on call, to
make investigations of complaints and to make inspections
twenty-four hours a day, seven days a week. During regular
week-day working hours (Mondays through Fridays from
8:30 a.m. to 5:00 p.m.), approximately ten inspectors are
available. From 5:00 p.m. to 8:30 a.m. on week-days and all
the hours of Saturdays and Sundays, there is only one inspec-
tor on call to answer complaints. The air pollution inspectors’
area of responsibility covers all of Philadelphia, and includes
inspecting all complaints of air pollution from whatever
source or area of the City and of all types, including odor
pollution. The Northeast Plant operates continuously, i.e.,
twenty-four hours per day, every day of the year.
17. Air pollution inspectors receive special training in
odor detection as to the type and intensity of odor that would
constitute a violation of the Air Management Code and/or the
Pennsylvania Air Pollution Control Act. The Air Management
Code defines “odor” as follows:
A-30
Smells or aromas which are unpleasant to persons or
which tend to lessen human food and water intake, inter-
fere with sleep, upset appetite, produce irritation of the
upper respiratory tract or create symptoms of nausea or
which by their inherent chemical or physical nature or
method of processing are or may be detrimental or dan-
gerous to health.
Any emission of an “odor,” as so defined, constitutes a public
nuisance under the Air Management Code, which, if detected
by an air pollution inspector, would constitute a violation of
the Air Management Code. Written notice of the violation,
signed by the air pollution inspector would be provided to the
owner or possessor of the land or facility from which the
emission emanates, if the inspector is able to make such a
determination. An inspector may make a finding of a violation
only if he detects a malodor sufficiently strong to constitute a
violation as of the time of the investigation or inspection.
There are no scientific instruments or tests for ascertainment
of malodors, and a determination of a violation is based on
individual inspector's sensing the violation through his own
sense of smell.
18. On each inspection where there is a determination of
a violation, the air pollution inspector is required to complete
a written form that notes, inter alia, the complainant's name
and address, the time, the facility emitting the odor, whether
a violation was determined to exist and, if so, its duration
together with the inspector's statement of his observations,
the person contacted at the offending facility, together with
such person's explanation, if any, and the date and name of
the inspector.
19. Based on records of Air Management Services, in-
spectors made determinations and filed written reports of
violations by the Northeast Plant of the odor provisions of the
Air Management Code and/or the Pennsylvania Air Pollution
Control Act five times in 1983; fifty-five times in 1984; 107
times in 1985 and eight times in 1986 to the date of trial. The
records of the Water Department, which received notices of
A-31
violations, show a slight deviation from these figures. The
records further establish a significantly higher number of
complaints made, usually by residents of the area living in
close proximity to the Northeast Plant, than violations deter-
mined by the inspectors. This difference between the number
of complaints and the number of violations as determined by
the inspectors is accounted for in two major ways: first, the
time lapse between the complaint and the inspection caused,
in some instances, the odor to dissipate; second, the com-
plainant’s sense of smell suggesting a violation did not always
agree with the inspector's sense of smell. To constitute a
violation, malodors discharged into the ambient air by the
Northeast Plant have to be of sufficient strength to cause an
odor violation on adjoining properties beyond the boundaries
of the Northeast Plant.
20. By far, the greatest number and frequency of com-
plaints and determinations of violations occurred between
May 1984 and July 1985. It was during this period of time
that the most extensive amount of renovation of the plant was
being undertaken. From August 1985 through the end of the
calendar year 1985, there were twelve violations determined
upon eighteen complaints. In 1986, there were no complaints
or violations for the months of January and February; there
were ten complaints with seven violations noted in March,
and five complaints with one violation noted in april. In
March 1986, electrical circuits in the Northeast Plant mal-
functioned and, as a result, the primary sedimentation tanks
could not properly be pumped to remove the settled solids,
which proceeded to decay causing a severe odor problem for
approximately one week.
21. The odors emanating from the Northeast Plant were
graphically described by individual plaintiff-witnesses who
lived in the vicinity, all of whom testified to the adverse
effects the odors had upon them and/or their family and
friends. The adverse effects were both physical and emo-
tional.
22. Joseph Anderlonis, pastor of a church located ap-
proximately one-quarter of a mile from the Northeast Plant,
A-32
detected at least four types of odors in the ambient air: (1) a
sulfur odor; (2) a caustic glue odor; (3) a sour sewer smell;
and (4) a stagnant water or liquid odor. He attributed the sour
sewer smell to the Northeast Plant. He further described that
smell to be like a combination of sewer gas and a sour gaseous
smell that comes from human vomit. At certain times of the
year, he had to keep the windows of his living quarters closed.
The odors have adversely affected him psychologically but not
physically. The frequency of the odors diminished during the
winter of 1985-1986, but he detected such odors twice in
1986.
23. Sharon Francis, an area resident for five years, has
noticed odors coming from the Northeast Plant, from Frank-
lin Smelting and from the Keystone Rendering Plant, each of
which has a distinct smell. She described the smell from the
Northeast Plant as “like a diaper pail that has been sitting
with a lid on it for about three weeks.” It disturbs her children
who may be playing outdoors. The odors from the Northeast
Plant cause her son to cough a great deal, and embarrass her
if friends visit her. She cannot open the windows of her home,
or hang her laundry outside without the odor permeating into
the cleaned laundry and into the house. This type of odor has
been present at least once a week during the last five years.
24. Mary Elton, another area resident, has lived in the
vicinity for thirty-eight years. She has noticed odors coming
from the Northeast Plant, Franklin Smelting, Rohm and Haas
and Allied Corporation. The odors coming from the Northeast
Plant smell to her like “a garbage bucket that’s been in the sun
all summer without being cleaned.” She is usually away from
her home and the neighborhood during the daytime. When
the odors occur while she is home, she closes the house and
remains inside. The odors make her nauseous and unable to
breathe normally. The odors have in the past occurred about
five times per month, but have been less frequent in 1986.
The odors became worse when the renovations and rebuilding
of the plant commenced.
25. Frances Pfeiffer, another resident of the Bridesburg
area, lives directly across from the Northeast Plant. She has
A-33
noticed odors that smell like “human waste” coming from the
Northeast Plant. It makes her feel sick. She is unable to
entertain company and relatives at her home when the cdors
are strong. Joseph Pfeiffer, her husband, described the odors
as smelling exactly like an “outhouse.” The cdors cause him to
suffer from nausea and headaches.
26. James Coppola has lived on Richmond Street directly
across from the Northeast Plant for fifteen years. The area is
zoned residential and a request by him for a zoning change to
commercial was turned down ostensibly because he lived in a
“fine residential area.” In addition to odors from the Northeast
Plant, he has noticed odors coming from “Franklin Smelting,
Unitank, and occasionally, Keystone Rendering.” The odor
from the Northeast Plant was described by Mr. Coppola as
“Terrible. Like open sewer, gassy odor sometimes. Chemical
odor sometimes. A urine type odor sometimes.” The odors
cause him to feel nauseous and he gets headaches. It prevents
outdoor barbecues. If it occurs on a weekend, he and his
family usually leave the neighborhood.
27. Susan Larsen, who has lived a short distance from
the Northeast Plant for the last seven years, has noticed odors
from the sewage plant that smell like human waste and “a
dirty outhouse.” She has noticed these odors while traveling
along U.S. Route I-95 on occasion. She believes the odors
cause her serious headaches. Her children do not want to stay
outside because the odor “is so bad”
28. Robert Kumosinski has lived close to the Northeast
Plant for about twelve years. He has detected odors arising
from Allied Chemical [Allied Corporation] and Rohm and
Haas and from the Northeast Plant. Mr. Kumosinski lives
about one mile from the plant, where the odor is nevertheless
quite strong when the prevailing winds are blowing from the
Northeast Plant toward Mr. Kumosinski’s home. The odors
can make one feel sick and queasy in the stomach and pro-
duce headaches. One particular “gaseous type odor” that
comes from the Northeast Plant causes his eleven-year old
son to turn white and immediately complain of a headache,
A-34
thereby frightening Mr. Kumosinski. The odors have been
noticed by him while traveling on U.S. Route [-95.
29. John Belland lives near the Northeast Plant on Rich-
mond Street adjoining U.S. Route I-95. The Northeast Plant
is directly behind his house. Although he has noticed odors
from Keystone Rendering, Rohm and Haas and Franklin
Smelting, the worst odor comes from the Northeast Plant.
The odor, when present, requires that he close all the win-
dows of his house, makes him nauseous, tired and listless,
and on occasions he leaves the vicinity.
30. The official records of Air Management Services es-
tablish that, at least since 1984 to the date of the trial, there
have been frequent and continual violations of the Philadel-
phia Air Management Code and the Pennsylvania Air Pollu-
tion Control Act and the respective regulations in that the
Northeast Plant has caused foul-smelling odors to escape into
the ambient air and spread onto adjoining properties in the
neighborhood. Defendants and intervenor-defendants offered
no evidence to the contrary, but instead offered evidence by
way of explanation for the violations.
31. Air Management Services has been responsive to
citizen complaints, and upon receipt of a complaint by tele-
phone, in most cases will make an on-site investigation
within fifteen minutes to one hour from the time of the
complaints. All of the resident citizen witnesses who testified
on behalf of plaintiffs, testified, in effect, that most, if not all,
complaints were promptly responded to by Air Management
Services, although the inspector frequently would not deter-
mine that there was an odor violation as of the time of the
inspection, and often disagreed with the complainants as to
the intensity of the bad odors.
Improvements to the Northeast Plant
32. During or about 1983, the major construction for
renovating and upgrading the Northeast Plant commenced
As of the time of the trial of the case, most of the contemplated
work had been completed. Some additional construction is
required. Not all of the “improvements” were fully tested or
A-35
operational at the time of the trial. Under the terms of the
consent decree, the work should have been completed and the
renovated plant completely operational before the date of trial.
33. One of the major sources of malodors arising from
the Northeast Plant was the so-called Grit Building, where
raw sewage initially entered the plant. That building is no
longer in service, although it remains intact and, due to some
leakage, infiltrate does go into the Grit Building and has to be
pumped out. Plans, indefinite as to exact time, are to block the
leak and completely shut down the Grit Building.
34. The Grit Building has been replaced by a so-called
Preliminary Treatment Building, a four-story structure that
contains many improvements over the Grit Building; includ-
ing, inter alia, influent from the sewer lines being completely
enclosed, above ground air exhaust, greater area within the
building for disposal of malodorous molecules, more adequate
heating, and ozonators to process the odors (not functioning
at the time of trial). In addition, the Preliminary Treatment
Building has two multiple hearth incinerators, designed to
incinerate grit screenings from the preliminary treatment
process and detriter process. These grit screenings were, as of
the time of the trial, still being stored and hauled away by
truck, because the incinerators had not vet been made opera-
tional. The hauling process is a constant potential source of
odor pollution.
35. Another major cause of odors arising from the North-
east Plant had been the sludge heaters, a submerged combus-
tion process that applied a flame directly into the sludge. The
sludge heaters have been replaced by fully enclosed tube heat
exchangers, eliminating the direct flame-burning process and
thereby reducing odors from the heating process. The open
flame sludge heaters were taken out of service in August of
1985
36. Entirely new digestors have been installed, all of
which now have fixed covers, rather than the floating type of
covers formerly utilized
37. The number and capacity of the settling tanks have
been increased. As a result, there should be less build-up of
A-36
odor-causing scum. Also, the frequency of taking a tank out of
service and draining it for repairs and maintenance will be
reduced. Such maintenance of a tank is a cause of odor
problems. As a part of the renovations, both the influent and
effluent portions of the primary settling tanks have been
enclosed, where turbulence may cause odors, and these build-
ings have ozonators.
38. The treating process also requires aeration by means
of rotating biological contactors. New ones were installed but
were found to contain design defects when placed in opera-
tion in mid-1985. The contractor repaired the defects and this
portion of the renovated system is now fully operational.
39. Sludge from the settling tanks is presently being de-
watered into a semi-solid state and then transported by truck
to the Southwest Water Pollution Control Plant for final dis-
position. It is planned that this sludge will in the future be
transported by pipeline a short distance to the Delaware River
where it will be pumped unto barges and transported by barge
to the Southwest Water Pollution Control Plant. The present
system causes some odors during the transportation.
40. The renovations to the Northeast Plant when finally
completed and operating as intended should reduce to a mini-
mum any malodors emanating from the Northeast Plant
caused by the processing and treatment of the sewage,
whether such odors are caused by the biological processes of
decomposition of the sewage or from volatile chemicals and
other organic sewage material. However, as of this time, the
renovations are not yet complete and defendan. have not
presented any evidence that they will be completed pursuant
to any fixed timetable.
Chemical Sources of Odors
41. The Northeast Plant accepts into its plant industrial
sewage, including chemical discharges from various indus-
trial plants, subject to limitations imposed under the Clean
Water Act. Certain of these discharg~s include volatile organic
chemicals, many of which when released as gases into the
ambient air produce strong unpleasant and harmful odors.
A-37
42. Chemical odors have frequently been noted by em-
ployees working within the old Grit Building. When such
odors are detected, the employees are advised to evacuate the
building, because such chemicals can have toxic effects on
humans and also because certain of them, when sufficiently
concentrated, cause a danger of explosion upon ignition. Tests
made by the Water Department's Industrial Waste Unit at
these times showed air samples of volatile organic substances
in the Grit Building far in excess of recognized odor detection
levels.
43.. Several of the resident witnesses on behalf of plain-
tiffs testified to various occasions when they detected chem-
ical odors, as distinct from sewage odors, coming from the
Northeast Plant.
44. Air Management Services conducted a series of tests
over the course of a year, from October 1984 through Sep-
tember 1985, by simultaneously taking ambient air samples
both upwind and downwind at the fencelines of the Northeast
Plant. There being no scientific test for odors, the tests were
for certain detectable gases, mostly volatile organic chem-
icals. The results of these tests failed to show that any sub-
stances were in the air downwind from the plant in sufficient
concentration to be within the range generally accepted by
experts in the field as being odor-recugnizable to a person
with a normal sense of smell. At least one of these tests was
conducted when there was a known chemical spill that had
entered and was in the Northeast Plant.
45. A chemical spill is a non-permitted discharge,
whether accidental or intentional, of a chemical substance
into the sewer system, either by reason of the quantity, con-
centration or type of substance. A chemical spill of some
volatile organic substances, when in sufficient concentration,
can and does cause chemical malodors within the Northeast
Plant. These malodors can and have been discharged through
the sewage treatment process and through artificial ventila-
tion of certain of the buildings, especially the old Grit Build-
ing, into the ambient air in such concentration as to cause the
malodors to cross over the boundaries of the Northeast Plant
A-38
é
into adjoining and neighboring properties, including residen-
tial properties of the plaintiffs.
46. Of a total of 189 inspection reports prepared by air
pollution inspectors that were received in evidence, two of the
reports, occurring in late 1984, made specific reference to
chemical odors detected.
47. One of the odors claimed by some of the witnesses to
have been detected in the air beyond the boundary of the
Northeast Plant was cumene.
48. The Industrial Waste Unit of the Water Department,
as one of its functions, seeks to determine the sources of
volatile organic compounds that arrive through the sewer
lines as influent in the Northeast Plant. The Industrial Waste
Unit determined that in 1983 and 1984 there was a problem
with cumene originating at the plant of intervenor-defendant,
Allied Corporation. With cooperation from Allied Corporation,
it was determined that cumene in the ground water on Allied
Corporation’ land was infiltrating directly into the industrial
waste sewer lines of the plant. The problem was corrected by
developing a system of drawing off the excess ground water
containing cumene and otherwise preventing its infiltration
into the sewer system.
49. Chemical spills have on occasion contributed to mal-
odors in the neighborhood. They have been infrequent and
have not been shown to have been caused by any industrial
plant that has been permitted to discharge its industrial
wastes into the sewer system, with the exception of the
cumene infiltration traced to Allied Corporation's plant.
Summary of Air Pollution Violations
50. The records of the Water Department of the City of
Philadelphia show that it received 177 notices of air pollution
violations (violations of either the Philadelphia Air Manage-
ment Code or of the Pennsylvania Air Pollution Control Act, or
both) from January 1983 through to the end of April 1986.
The records of the Air Management Services show a total of
175 notices of violations during that same period of time—an
insignificant but unexplained discrepancy. In addition, there
A-39
were many more complaints of odor violations by persons
living in the vicinity of the Northeast Plant that were investi-
gated by air pollution inspectors, for which no formal notices
of violation were issued.
51. Although the new plant is now in full operation, and
has been since approximately late December 1985, very bad
odors that are clear violations of the Philadelphia Air Manage-
ment Code and the Pennsylvania Air Pollution Control Act
continue to occur with substantial frequency. There are vari-
ous causes of these continuing violations such as (1) improper
maintenance, (2) equipment malfunction, (3) ozonators not
properly functioning, (4) draining and repairing of old holding
and sedimentation tanks.
52. The National Pollution Discharge Elimination Sys-
tem standards, applicable to the Northeast Plant, limit the
discharge of suspended solids into the Delaware River to
62,600 pounds per day. In December of 1985. the Norfheast
Plant, pursuant to the consent decree, was to be in com-
pliance with those standards. Tests showed that the Northeast
Plant was discharging 110,000 pounds of solids per day and
that it is not now and has never complied with the National
Pollution Discharge Elimination System standards.
53. Ozonators are provided in the Preliminary Treatment
Building and in the primary sedimentation tank buildings
that enclose the turbulent areas of influent and effluent to the
sedimentation tanks. As of the time of the trial, none of the
ozonators nor the ozonating systems were operating or in
operable condition. The Preliminary Treatment Building had
been in operation for approximately eight months before the
trial. Ozonators are intended to be an integrated part of the
ventilation system for the buildings. Ozonators are designed
to oxidize and thus eliminate odor causing substances in the
air, before they are discharged from the buildings through the
ventilating systems. Because they have not been as yet placed
in operation, despite repeated unsuccessful attempts, it is not
known how effective thev will be in actual operation.
Discussion
The City of Philadelphia operates the Northeast Water
A-40
Pollution Control Plant through the City Water Department.
The Northeast Plant has violated and continues to violate the
Pennsylvania Air Pollution Control Act and the Philadelphia
Air Management Code by causing and permitting malodors to
be discharged into the ambient air and carried unto land and
properties beyond the boundaries of the Northeast Plant. !
These malodors are frequent and intense. They have and
continue to cause serious physical and emotional harm, an-
noyance and discomfort to residents of normal sensibilities
living in the neighborhood surrounding the Northeast Plant.
To the extent that the Pennsylvania Air Pollution Control Act
and the Philadelphia Air Management Code, together with
their respective regulations are a part of the EPA-approved
Pennsylvania SIP under the Clean Air Act, 42 U.S.C. § 7401
et seq., the City of Philadelphia, as operator of the Northeast
Plant has violated and continues to violate the federal Clean
Air Act as well as the Pennsylvania Air Pollution Control Act
and the Philadelphia Air Management Code. The continuing
and unreasonable discharges of malodors to the great harm,
annoyance and discomfort of nearby residents and the public
generally constitutes a continuing public nuisance.
The evidence is quite clear that highly obnoxious odors
are frequently discharged into the air from the Northeast
Plant. Defendants presented no evidence challenging or con-
tradicting the many air pollution violations as determined by
Air Management Services through on-site inspections by air
pollution inspectors. The local residents who graphically testi-
fied as to the adverse effects the odors have upon them, their
families and friends are completely credible. Obviously some
persons are more sensitive to and offended by malodors than
1. Subsequen: to the trial, counsel sent copies of correspondence to
the court. Although not a part of the trial record, it seems clear that resi-
dents are contnuing to complain of malodors subsequent to the date of the
trial and the City of Philadelphia admits that some odor problems at the
plant have recently been created by malfunctioning equipment. The trial
evidence establishes continuing odor problems to the date of trial. Air Man-
agement Services cited the Northeast Plant for violations during the month
in which the trial was held
A-4]
other persons. Giving adequate allowance for varying degrees
of sensitivity, the evidence clearly establishes that the neigh-
borhood residents have been long suffering. They are not
simply complaining about a petty annoyance, or a condition
that cannot be alleviated by reasonable measures. They live in
a residential area, as zoned by the defendant, City of Philadel-
phia. They are entitled to a quality of air consistent with such
zoning and land use.
The evidence establishes that the Northeast Plant, as
well as any other public sewage disposal system, if properly
designed, constructed and operated, can serve its important
public function without causing any serious odor problem in
the neighborhood. Repeatedly, throughout the trial, defen-
dants referred to the renovated and updated plant, when fully
completed and properly operating, as being “the state of the
art,” meaning, of course, that the plant should be the most
modern and efficient as is presently technologically possible.
This contention appears reasonable in light of capital expen-
ditures for the improvements, repairs and renovations exceed-
ing Three Hundred Million Dollars. Every witness who testi-
fied on the subject, including defense witnesses, agreed that
if the present plant, as renovated, is properly maintained and
all systems and equipment are functioning properly and as
intended, no odor air pollution should escape from the North-
east Plant into the ambient air in such quantity or concentra-
tion as to cause any serious annoyance or discomfort to any
person or to impede any landowner in the rightful use and
enjoyment of such landowner’s property. Plaintiffs’ expert
witnesses, although “suggesting” some possible improve-
ments to the system, provided no credible testimony that the
design of the renovated plant or its component parts or sys-
tems should be altered or changed or that it was inadequate or
defectively designed.
The defense focused primarily on the contention that the
City of Philadelphia and its agencies and officials are doing
the best it and they can to alleviate and eliminate odor prob-
lems. They further contend that all odor problems will be
resolved satisfactorily if afforded sufficient time to work out
A-42
all of the “bugs” in the system. Without in any way question-
ing the good faith of these assertions by defendants, such
assurances can have no more than a hollow ring to the neigh-
bors who are forced by circumstances to live in the frequently
occurring stench from the Northeast Plant and who have
heard these assurances for well over three years with little or
no apparent improvement.
One of the primary sources of malodors was the so-called
Grit Building. According to the evidence, that building and its
facilities were taken out of service in March, 1986. Log books
of the operations within the Grit Building establish that the
building and its processing of the sewage was very poorly
maintained. The Grit Building was the place where the
sewage first entered the Northeast Plant for processing. Ac-
cording to the expert witnesses who testified, poor mainte-
nance and allowing unsanitary conditions to exist in the Grit
Building were major sources of odors emanating from the
Northeast Plant. The Grit Building, although presently out of
service, remains physically connected to the system and
could and would be utilized if there is any serious malfunc-
tion or breakdown in the new Preliminary Treatment Build-
ing, which building now performs the tasks formerly handled
in the Grit Building as well as additional processing work.
Also, defense witnesses conceded that there was some influ-
ent leakage into the Grit Building that required regular re-
moval, apparently by pumping. Meanwhile, the potential that
foul odors will accumulate and be vented out of the building at
or near ground level and into the surrounding air remains.
There are no ozonators or other equipment in the Grit Build-
ing for removing or neutralizing odors before they are dis-
charged into the air at or near ground level through the
powered ventilation system.
Ozonators are the great hope of the defendants for solv-
ing the major odor problems. A system of ozonators has been
installed in the Preliminary Treatment Building and in the
buildings that enclose the influent and effluent ends of the
primary sedimentation tanks. By adding ozone to the air
before it is discharged from the buiidings into the atmo-
A-43
sphere, it is expected that the ozone will oxidize and thereby
neutralize odors caused by decomposition of sewage material
and odors caused by volatile chemicals. Because the system
has not yet been satisfactorily put into operation, how effec-
tive it will be remains uncertain.
The ozonator system in the Preliminary Treatment Build-
ing has been tested, but because of complicated technological
difficulties in adjusting automatic regulators that will control
the amount of ozone to be added to the air, the system has not
become operational. Witnesses for the defense testified that it
would be put into operation within one week following the
end of the trial. Attempts to put the system into operation
have been made since September 1985. Some of the long
delay may have been caused by disputes with the contractor
as to responsibility for operation of the ozonating system.
There is no direct evidence that any of the foul odors
coming from the Northeast Plant originate within the Prelim-
inary Treatment Building or the buildings over the ends of the
primary sedimentation tanks, both of which areas are de-
signed for ozonators. However, the potential for odors coming
from these buildings so long as the ozonators are not operat-
ing is clear. Ozonators were designed specifically to address
the odor potential. Odors are continuing to come from the
Northeast Plant. It is reasonable to conclude that lack of
operational ozonators is a factor in the continuing discharge of
malodors by the Northeast Plant.
Deputy Water Commissioner Thomas Walton, who has
been in charge of the operations at the Northeast Plant since
1980, presented extensive testimony that exposed several
causes for malodors escaping from the plant and also pointed
out potential future odor problem areas. From his testimony,
as well as that of other witnesses, one of the major sources
of foul odors was in the Grit Building. The new Prelimi-
nary Treatment Building, that replaces the Grit Building, was
“phased in” during the fall of 1984 and the following winter.
Although the Grit Building was, as of the time of the trial,
completely out of service, Mr. Walton testified that it “could be
restored to service, if we were to find that during the continu-
A-44
ing start-up and shakedown of the pumps in the Preliminary
Treatment Building, we would encounter a problem that
would require us to go back to it.” It is clear from the testi-
mony that the “start-up and shakedown” of the pumps in the
Preliminary Treatment Building has not been completed,
even though utilization of the new building's facilities was
“phased in” commencing in the fall of 1984. The potential of
utilizing the now defunct Grit Building remains a distinct and
disturbing possibility. As Mr. Walton testified: “At such times
as we were [sic] completely confident in the operation of the
PTB [Preliminary Treatment Building], the flow into the old
Grit Chambers will be completely blocked off in the junction
chamber’
Mr. Walton testified to another potential odor source and
problem. Screenings and grit in the Preliminary Treatment
Building are currently being trucked off-site to temporary
storage at the Southwest Plant. This was because the incin-
erators in the Preliminary Treatment Building, designed to
reduce the grit to inert ash, were not yet, according to Mr.
Walton, “started up for full operation” The present hauling
system is obviously a potential source for escaping odors.
Until the ozonators are properly functioning, any foul
odors created inside the buildings that cannot be dissipated
within the limited confines of the buildings will be vented by
high volume fans into the ambient air from the rooftops. Foul
odors, whether created by decomposition of raw sewage or
from chemical spills, will thereby be released. Mr. Walton
testified that the ozonator system was “still undergoing start-
up, and we are awaiting and working with the contractor and
vendor to place it into full operation.”
Another serious potential odor problem will occur when
the thirty-year old primary sedimentation tanks are “rehabili-
tated.” This work, according to Mr. Walton, cannot be started
“until the plant is fully operational, including modification to
some of the existing final tanks.” Mr. Walton also testified that
work on the old final settling tanks that are scheduled to be
taken out of service and others that are to be “rehabilitated”
will be started as soon as the grant award is made by EPA’
A-45
These tasks will obviously cause odors to escape unless con-
ducted in a very careful manner.
Presently, sludge is being de-watered and converted into
semi-solid sludge cake on site and then conveyed by truck to
the Southwest Plant. Until such time as the barging operation
is put into effect, truck removal presents an admitted odor
hazard.
Scum from the surface of the primary and final sedimen-
tation tanks was formerly incinerated on site. During the
renovations, this process was discontinued. Scum is presently
collected by a vactor truck (type of suction machine), and
discharged into open air lagoons remaining on the site. The
lagoons are treated with lime to avoid or minimize odors. The
open lagoons are quite obviously a source of potential foul
odors. A new scum incinerator has been constructed and,
according to Mr. Walton, is presently being “debugged.”
From the testimony of Mr. Walton, whose testimony |
find to be credible, as well as all the other evidence and
testimony in the case, it is apparent that much work remains
to be done before the sources and causes of serious malodors
may reasonably be expected to be eliminated. What is disturb-
ing is that although defendants have taken the litigation posi-
tion that the new renovated plant is now “on stream” and fully
operational, in fact, much remains to be done and major
equipment that optimistically may eliminate odor problems is
not functioning. Despite many attempts over a long period of
time, defendants have thus far been unable to have the equip-
ment function properly. Equally disturbing, defendants have
not provided any specific timetable when the additional work
to be done will be completed.
The Water Department has taken several interim mea-
sures in an attempt to control odors arising from the North-
east Plant during the renovation and rehabilitation of the
plant. These include assigning a qualified engineer on duty
until ten o'clock at night to be in charge of any emergency
odor control problem and to make “odor tours” around the
perimeter of the plant. Deodorizing equipment was attempted
to be used in the old sludge heater building (an admitted
lr
A-46
major source of odors escaping into the air) without any
appreciable degree of success. Attempts were made to force
air through wood chips to modify the odor of the air that was
vented from the sludge heater building. A contractor has been
available to lime the accumulations of grit stockpiled for truck
removal; and to lime the lagoons used to hold the removed
scum. Deodorizing masking sprays have been used around
the perimeters of the sedimentation tanks. As Mr. Walton
testified, because of earlier overloading, the primary sedimen-
tation tanks have been failing “with an alarming frequency
causing a difficult odor source from accumulated sludge in
the bottom of such tanks.” Potassium permanganate has been
applied to exposed sludge accumulations to avoid septic con-
ditions from developing and thereby producing objectionable
odors. Finally, contractors have been employed to speed *
tank cleaning and repairs.
There was substantial testimony that the odor problems
at the Northeast Plant are diminished from the time that
major reconstruction and renovation was taking place in 1983
and 1984. The records of Air Management Services of vio-
lations by the plant establish that up to the time of the trial
there were continuing and frequent malodor discharges by
the plant. The evidence further establishes that the odor
problems have not been solved despite the claimed best
efforts of the defendants. Much additional work, repair and
renovation remains to be done, and a substantial amount of
that to be done presents potential air pollution problems, the
extent of which are quite uncertain. The short term future
appears very bleak for the neighborhood community.
What, if anything, as a practical matter, can the court do
to help alleviate the problem? Wholly aside from the difficult
legal issues of this court's authority to issue injunctive relief
under the federaj Clean Air Act or as relief for a pendent state
claim under the Pennsylvania Air Pollution Control Act or for
a common-law nuisance, will any enforceable decree bring
about a correction of the problem? I have no doubt that the
officials of the Water Department responsible for operating
the Northeast Plant are sincerely attempting to take reason-
A-47
able steps to minimize the discharge of offensive odors into
the air. All of the City witnesses who testified on the subject
either expressly or by clear implication asserted therein that
when all of the contemplated work is completed and the
whole system is finally fully tested and operating as intended
and expected there should be no further air pollution prob-
lems. However, the law does not and should not provide any
allowance for air pollution violations. At common law, neither
individuals nor municipalities have the right to maintain for
any period of time activities that constitute a public nuisance,
irrespective of lack of fault or due care. Because the Northeast
Plant can be operated without creating a public nuisance, it
must be so operated.
To issue a simple injunction prohibiting the City from
doing that which the law clearly prohibits may, on first im-
pression, appear to be of little value and redundant. Because
of the power of a court to enforce a valid injunction through
contempt proceedings, there are, however, practical benefits
to such a general injunction. Repeated notices of violations by
the Air Management Services have been of little, if any, prac-
tical help in preventing further violations. At a minimum
therefore, this court, if it has jurisdiction in this case to do so,
should enjoin continuing violations even though ultimate
enforcement may require contempt proceedings.
By Memorandum Opinion dated April 23, 1985, I ruled
that I had no right to review or invalidate EPA's approval of the
Pennsylvania SIP. Pursuant to 42 U.S.C. § 7607(b), a petition
for review must be filed with the court of appeals. Defendants
in this case filed such a petition after this case was instituted.
The court of appeals dismissed the petition as untimety.
Therefore, at the time this action was 1iled, the Pennsylvania
SIP incorporated the odor pollution provisions of the Pennsyl-
vania Air Pollution Control Act and the Philadelphia Air Man-
agement Code. This action filed pursuant to the “Citizen's
Complaint” provision of the Clean Air Act, 42 U.S.C. § 7604,
afforded jurisdiction. By revision of its approval, EPA elimi-
nated from the Pennsylvania SIP the odor: pollution provi-
sions of the Pennsylvania Air Pollution Control Act and the
a ee ee ee
A-48
Philadelphia Air Management Code. If this revision was val-
idly adopted, it became effective June 19, 1986, subsequent to
the date of the trial. A petition for review as to the validity of
the revision has been filed by plaintiffs with the court of
appeals. No stay as to the effectiveness of the revision has
been entered.
This court had valid federal jurisdiction when this action
was filed. Federal jurisdiction continued at least through the
date of completion of the trial. The revision of the Pennsylva-
nia SIP, even if held by the court of appeals to be valid would
not thereby cause the district court to lose all jurisdiction,
although it might, as of this date, preclude the entry of any
injunctive or other relief under the Clean Air Act.
On a motion to dismiss, filed the morning set for the
commencement of the trial, I ruled from the bench that the
district court had jurisdiction to hear the federal claim and
that there were valid pendent state law claims that would also
be tried at the same time. Even if, by reason of the now
adopted revision of EPA’s approval of the Pennsylvania SIP.
the district court may no longer have the power to issue an
injunction under the “Citizen's Complaint” provisions of the
Clean Air Act, 42 U.S.C. § 6504, it would still retain jurisdic-
tion to decide pendent state claims. Rosado v. Wyman, 397
U.S. 397, 404-405 (1970); Nationwide Mutual Insurance
Company v. T & D Cottage Auto Parts, 705 F.2d 685, 687 (3d
Cir. 1983).
The complaint did not expressly seek relief on the basis of
any pendent state claim. It is clear, however, that prior to trial,
plaintiffs asserted their intention to rely on pendent state
causes of action under the Pennsylvania Air Pollution Control
Act. This was brought about because of the proposed revision
of the EPA approval of the Pennsylvania SIP. Violations of both
the Pennsylvania Air Pollution Control Act and the Philadel-
phia Air Management Code were expressly alleged in the
complaint. Reliance at trial on the pendent state claims in no
way surprised or caused prejudice to the defendants. No
evidence was introduced that was not subject to prior discov-
ery. As part of plaintiffs’ proof of violation of the Clean Air Act,
A-49
plaintiffs were required under the pleadings to prove vio-
lations of either or both the Pennsylvania Air Pollution Control
Act or the Philadelphia Air Management Code. This same
evidence was likewise relevant and essential to establishing a
common-law nuisance. Thus, plaintiffs’ reliance on the state
pendent claims caused neither surprise nor prejudice to de-
fendants.
To bring an action or suit in equity under the Pennsylva-
nia Air Pollution Control Act, the statute expressly requires
thirty days prior notice be served upon the Attorney General.
No such notice was ever provided to the Attorney General
although prior notice was provided to many state and city
officials. (See Finding of Fact 13). Those notices were ob-
viously given in order to comply with notice provisions of the
Clean Air Act, 42 U.S.C. § 7604(b), which require notice to
the state, but not necessarily to the State Attorney General.
Although plaintiffs argue that the Attorney Genera: obviously
had notice, I cannot accept that as being in compliance with
the express statutory requirement that such notice be served
on the Attorney General. Nor can I accept the argument, in
the absence of some controlling state court decision, that the
Act is merely directory and not mandatory. In my view, the
absence of such notice precludes the plaintiffs from proceed-
ing, as a pendent cause of action, under the Pennsylvania Air
Pollution Control Act for an injunction under 35 PS.
§4010(f).
This, however, does not complete the inquiry. The Penn-
sylvania Air Pollution Control Act expressly provides that “this
act is to provide additional and cumulative remedies to abate
the pollution of the air of this Commonwealth” 35 PS.
§ 4012(g). Also, 35 PS. § 4012.1a provides in part:
It is hereby declared to be the purpose of this act to
provide additional and cumulative remedies to abate the
pollution of the air of this Commonwealth, and nothing
contained in this act shall in any way abridge or alter
rights of action or remedies now or hereafter existing in
equity, or under the common law or statutory law, crimi-
A-50
nal or civil, nor shall any provision of this act ... be
construed as estopping the Commonwealth, persons or
municipalities, in the exercise of their rights under the
common law or decisional law or in equity, from proceed-
ing in courts of law or equity to suppress nuisances, or to
abate any pollution now or hereafter existing, or enforce
common law or statutory rights. No courts of this Com-
monwealth having jurisdiction to abate public or private
nuisances shall be deprived of such jurisdiction to abate
any private or public nuisance instituted by any per-
son for the reason that such nuisance constitutes air
pollution.
35 PS. § 4013 provides:
A violation of any order or of any provision of any rule
or regulation promulgated pursuant to a local air pollu-
tion code or to a State air pollution act, which limits or
controls the emission of any air contaminant shall con-
stitute a public nuisance and shall be abatable in the
manner provided by law.
A statute could hardly be more specific that common law
remedies remain. If a court finds a violation of either or both
the Air Pollution Control Act or the Philadelphia Air Manage-
ment Code, on the suit of residents, the court may enjoin
such violations as public nuisances, notwithstanding failure
“) give prior notice to the State A®@orney General.
Consequently, irrespective of whether plaintiffs may ob-
tain injunctive or other relief under the federal Clean Air Act
because of the revision of EPA’s approval of the Pennsylvania
SIP. and irrespective of whether plaintiffs may maintain a
State statutory claim under the Pennsylvania Air Pollution
Control Act for injunctive or other relief such as civil mone-
tary penalties because of failure to notify the Attorney General
ot Pennsylvania, plaintiffs may nonetheless proceed in this
action against defendants in equity to enjoin and abate as a
common law nuisance, the air pollution being created by the
detendants at the Northeast Plant. This court has and will
\-5 1
assert pendent jurisdiction, as to the common-law claim of
maintaining a public nuisance
lhe intervenor-defendants operate industrial plants that
discharge certain industrial wastes into the sewers leading to
the Northeast Plant. Thev intervened to prevent any in-
junctive relief that would adversely affect their continued use
of the public sewers to dispose of certain industrial wastes
[here is ample evidence that chemical spills have trom time
to time occurred, which result in strong and obnoxious chem-
ical odors being emitted from the Northeast Plant. There is,
however. no evidence that such odors are caused by the regu-
lated industrial waste discharges from either of the inter-
venor-defendants, with the exception of the cumene problem
at Allied Corporations plant. That problem was satisfactorily
corrected long before the trial. There is no evidence upon
which to conclude that any of the present and continuing odor
problems are caused by either intervenor-defendant
The sources of anv chemical odors in the ambient air in
the vicinity of the Northeast Plant are, at best. difficult to
trace. A strong sewer or sewer gas odor in the vicinity may
logically be found to come from the Northeast Plant, espe-
cially when the odor is more noticeable downwind from the
plant. Chemical odors, however, are more difficult to trace to
the Northeast Plant. In the immediate vicinity there are sev-
eral chemical plants, including the plants of both intervenor-
defendants. This case involves claims of malodors arising
from the Northeast Plant, not odors coming from other indus-
trial plants. Although no industrial plant, including either
intervenor-defendant, has a right to pollute the air with foul
chemical odors. so far as this action is concerned, only if such
chemical odors come trom and through the sewer system at
the Northeast Plant would injunctive or other relief as to
chemical odors be appropriate
Plaintiffs failed to establish by a preponderance of the
evidence that either of the intervenor-defendants presently
causes or is likely to cause in anv way any of the malodors,
including chemical malodors, coming trom the Northeast
Plant. Injunctive relief against either of the intervenor-deten-
Ce PN IR RD PS MU PSE SEBO Da A
4
A-52
dants would not be justified on the basis of the evidence
presented.
Plaintiffs seek various types of injunctive relief. General
injunctive relief against committing a public nuisance by the
Northeast Plant emitting malodors into the ambient air seems
clearly appropriate. A provision that defendants be enjoined
from violating the Pennsylvania Air Pollution Control Act and
the Philadelphia Air Management Code, to the extent that
such violations constitute a public nuisance is also appropri-
ate. Even though this case is being decided and relief granted |
on the basis of a common-law public nuisance, the Pennsylva- |
nia Air Pollution Control Act and the Philadelphia Air Man- |
agement Code, in substance merely specify and codify certain
of the common law as to what constitutes a public nuisance.
In addition, it is the obligation of the Northeast Plant to
operate in conformity with the odor provisions of both the
Pennsylvania Air Pollution Control Act and the Philadelphia
Air Management Code. Clearly the plant has not operated
within the requirements of either the statute or the code.
Plaintiffs seek the court to specify on a sliding scale the
amount of monetary penalty that shal! be assessed in the
event of future violations, to be paid to the Clean Air Fund of
the Commonwealth of Pennsylvania. Although the Pennsyl-
vania Air Pollution Control Act provides for specific mone-
tary penalties payable to the Clean Air Fund, 35 PS.
4009.1-4009.2-4010, because no notice was served on the
Attorney General as provided by the Act, the procedures and
remedies therein specified are not applicable. I find it unnec-
essary at this stage of the proceeding to specify what penal-
ties, or other sanctions, may or will be imposed in the event of -
any violation of the injunction. Those matters may more prop-
erly be determined when and if there is a finding of contempt
for violation of any injunction.
The proposed relief requests that an order implementing
certain procedures and imposing reporting obligations when
complaints of odor pollution are received be put into effect.
Defendants assert that most of these procedures are already
required or are otherwise adequately covered by other proce-
NN EN ES SAN SI PN TST PS PE! NS ee FON IVY la
A-53
dures, making such requirements by court order unnecessary
and redundant. Certain requirements will be specified to be
sure that the public and the court are adequately advised and
notified of future odor problems at Northeast Plant and of
corrective measures taken, and as to progress for finally put-
ting the renovated plant in complete and proper functioning
order.
Plaintiffs ask the court to award attorney fees and costs,
including expert witness fees. Under state law, attorney's fees
and costs by successful plaintiffs are not recoverable, either at
common law or under the Pennsylvania Air Pollution Control
Act. Under the federal Clean Air Act, 42 U.S.C. § 7604(d), the
court, in issuing any final order, “may award costs of litigation
(including reasonable attorney and expert witness fees) to
any party, whenever the court determines such award is
appropriate.”
Plaintiffs chose to file this action in federal court, despite
serious questions as to federal jurisdiction because of the
questionable validity of EPA’s approval of the odor provisions
of the Pennsylvania SIP. Plaintiffs’ counsel frankly stated that
the primary reason for seeking relief under the federal Clean
Air Act was because of the provision for possible attorney's
fees and expert witness costs. An attorney representing a
client is fully justified, and arguably obligated, where there is
a choice of forum, to select the forum where the matter may
be litigated at the least cost to the client, all other considera-
tions being equal. This action was filed on behalf of an entire
community. Plaintiffs were represented by the Public Interest
Law Center of Philadelphia, so-called “Pilcop” It is well
known that one of Pilcop’s main sources of revenue is derived
from successful litigation in cases where statutory fees are
provided.
As noted previously, I have ruled that this court acquired
federal jurisdiction under the Clean Air Act, 42 U.S.C.
§ 7604, and that it would accept pendent jurisdiction as to the
state statutory and common-law claims. There is grave doubt
that any viable federal claim existed subsequent to June 19,
1986, the effective date of EPA’s revision of its approval of the
A-54
Pennsylvania SIP, which eliminated the odor provisions from
federal approval. This case has been decided and the relief to
be granted wili be founded solely on the basis of the pendent
state common-law nuisance claim.
The question presented is whether it would be “appropri-
ate” to award attorney's fees and costs pursuant to 42 U.S.C.
§ 7604(d), even assuming the right to award fees and costs in
this case. I have ruled that the federal claim was and remains
sufficient to provide federal court jurisdiction and to permit a
final decision on the pendent state claims. However, because
relief will be granted solely on the state common-law public
nuisance claim, under the facts of this case, I do not find it
appropriate to award any attorney’ fees or costs. I so conclude
notwithstanding the consideration that it was entirely proper
to file this action in this court and seek attorney's fees and
costs. In my view, only if some relief is awarded under the
federal statute, would the award of attorney's fees and costs be
appropriate. At the present time, this court probably could not
validly provide any injunctive or other relief under the federal
Clean Air Act. At least, no such relief will be granted. Conse-
quently, attorney’ fees and costs under that Act are not appro-
priate and will not be awarded.
To the extent that the “Discussion” portion of this opinion
contains findings of fact and/or conclusions of law not set
forth separately under the respective findings of fact or con-
clusions of law sections of this opinion, the same shall be
deemed as additional findings of fact and/or conclusions of
law.
Conclusions of Law
1. This court has subject-matter jurisdiction and has
jurisdiction over the parties to this action.
2. Venue in this district is proper.
3. The Northeast Water Pollution Control Plant of the
City of Philadelphia continues, as it has in the past, to dis-
charge and emit into the ambient air, malodors that cause
substantial harm, injury, annoyance and discomfort to resi-
A-55
dents and persons in the vicinity of the Northeast Water
Pollution Control Plant.
4. The malodors that have been and continue to be emit-
ted from the Northeast Water Pollution Control Plant are
unnecessary and unreasonable.
5. The malodors that have been and continue to be emit-
ted from the Northeast Water Pollution Control Plant con-
stitute a public nuisance.
6. The City of Philadelphia, through its Water Depart-
ment, owns, operates, controls and maintains the Northeast
Water Pollution Control Plant.
7. The City of Philadelphia continues, as it has in the
past, to maintain a public nuisance caused by the malodors
being discharged into the ambient air and being permitted
to escape from the lands of the Northeast Water Pollution
Control Plant into adjoining, separate and other lands and
property.
8. Plaintiffs are entitled to an injunction against the City
of Philadelphia to abate and preclude the continuing public
nuisance.
9. Plaintiffs have not proved by a preponderance of the
evidence that either of the intervenor-defendants, Rohm and
Haas Company or Allied Corporation, are the cause of any
continuing malodors being emitted from the Northeast Water
Pollution Control Plant.
10. An award of attorney’ fees and costs to plaintiffs,
pursuant to 42 U.S.C. § 4706(f), is not appropriate, and fees
and costs will not be awarded to plaintiffs.
A-56
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF >: CIVIL ACTION
BRIDESBURG, et al.
V.
CITY OF PHILADELPHIA, et al. ) NO. 85-14
ORDER
Based upon the foregoing opinion containing findings of
fact, discussion and conclusions of law, and after a full trial on
the merits, it is
Ordered, Adjudged and Decreed as follows:
1. The City of Philadelphia is enjoined from maintaining
and operating the Northeast Water Pollution Control Plant of
the City of Philadelphia in violation of the odor emission
provisions of the Pennsylvania Air Pollution Control Act, 25
Pa. Code § 123.31, and of the Philadelphia Air Management
Code §§ 3-102(3), (5), (25) and § 3-201(a)(3), and the respec-
tive regulations of the Pennsylvania Air Pollution Control Act
and the Philadelphia Air Management Code.
2. The City of Philadelphia is enjoined from maintaining
and operating the Northeast Water Pollution Control Plant in
such a way or manner as to cause the emission into the
ambient air of any malodor of such intensity, quantity and
concentration as unreasonably to cause injury, harm, an-
noyance, or discomfort to persons of normal sensibilities who
are not on the land of the Northeast Water Pollution Control
Plant.
3. Whenever the Northeast Water Pollution Control
Plant is notified by Air Management Services of a violation of
the Philadelphia Air Management Code or the Pennsylvania
Air Pollution Control Act, the City of Philadelphia, through its
Water Department shall promptly make a comprehensive in-
vestigation of the source and cause of the violation and take all
reasonable actions and measures to eliminate the violation
A-57
and any potential repetition. Within seventy-two (72) hours of
receipt of notice of a violation from Air Management Services,
a detailed written report showing full compliance with this
portion of the order shall be signed by the supervisor in
charge of the Northeast Water Pollution Control Plant and by
the Commissioner or Deputy Commissioner of the Water
Department of the City of Philadelphia, and filed in this
action with the court, with a copy to counsel for plaintiffs.
4. Whenever an individual makes a complaint of an odor
emission violation by the Northeast Water Pollution Plant to
Air Management Services, and Air Management Services,
whether upon investigation or not, fails to find and notify the
Northeast Water Pollution Control Plant of a violation, upon
the signature of three or more adult persons attesting to the
time and place of the claimed violation and served upon
whomever may be for the time being the supervisor in charge
of the Northeast Water Pollution Control Plant and/or the
Commissioner or Deputy Commissioner of the Water Depart-
ment of the City of Philadeiphia, an investigation and report
shall be made and filed as provided in paragraph 3 of this
order.
5. In the event that three (3) or more reports as required
by paragraph 3 and/or 4 of this order are required to be filed
with the court within any period of thirty (30) days, upon
application of any party or upon the court’ initiative, sua
sponte, a prompt hearing for contempt may be held. Nothing
herein shall preclude plaintiffs or any other party having a
proper interest from seeking a citation for contempt in the
event of any violation of any portion of this order.
6. The Water Department of the City of Philadelphia
shall. on or before the tenth (10th) day of each month, file
with the court a detailed written report, signed by the Com-
missioner or Deputy Commissioner of the Water Department,
setting forth all repairs, renovations and capital improve-
ments to the Northeast Water Pollution Control Plant that
have occurred during the reporting period together with a
timetable for all planned future repairs, renovations and cap-
ital improvements that have caused or may reasonably be
A-58
expected to cause any malodor or air pollution. Such report
shall also set forth any malfunction, breakdown or testing of
equipment occurring during the reporting period that has
caused or may have caused any malodor or any air pollution
and any and all actions taken to minimize such malodor or air
pollution problem. A copy of such reports shall be provided to
counsel for plaintiffs.
7. In the event of any chemical discharge or spill enter-
ing the Northeast Water Pollution Control Plant that creates a
detectable malodor in the ambient air outside of any building
at the Northeast Water Pollution Control Plant or causes or
requires any building to be evacuated by employees, a similar
investigation and report as required by paragraphs 3 and 4 of
this order shall be made and filed. Investigation of any chem-
ical discharge or spill causing a detectable malodor or an
evacuation of any building shall seek to determine promptly
the source and cause thereof and the City of Philadelphia
shall take all reasonable measures to prevent reoccurrence
from the same or any other source. The results of such inves-
tigation and the action taken shall be set forth in the report
required to be filed by this order.
8. Any party may file a motion at any time for any altera-
tion, modification, addition or change in this order, provided
the parties first seek in good faith by conference with each
other to agree and stipulate to the same.
BY THE COURT:
/s/
Donald W. VanArtsdalen, S.J].
July 25, 1986
A-59
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF CIVIL ACTION
BRIDESBURG, et al.
PHILADELPHIA WATER
DEPARTMENT, et al. NO. 85-14
ORDER
WHEREAS, plaintiffs’ complaint seeks declaratory, in-
junctive and other relief for defendants’ alleged violations of,
inter alia, the Clean Air Act, 42 U.S.C. §§ 7401-7642; and
WHEREAS, defendants have filed a motion to dismiss
plaintiffs’ complaint contending, inter alia, that odor emis-
sions are not included within the ambit of the Federal Clean
Air Act; and
WHEREAS, plaintiffs’ contend in response that certain
state regulations controlling malodorous emissions were ap-
proved by the Environmental Protection Agency (EPA) as part
of Pennsylvania’ State Implementation Plan (SIP), thus mak-
ing control of malodorous emissions a part of the Clean Air
Act by virtue of its incorporation in the SIP; and
WHEREAS, the EPA is not a party to this suit; and
WHEREAS, “the acceptance of amicus |curiae| briefs is
within the sound discretion of the {district} court,” Strasser v.
Doorley, 432 F.2d 567 (1st Cir. 1970); and
WHEREAS, amicus curiae is technically “a friend of the
court,” not an advocate, that arises via an ex parte order of the
court and advises the court in order that justice may be
attained, Allen v. School Board of Prince Edward County, 28
F.R.D. 358, 362 n.2 (E.D.Va. 1961); and
WHEREAS, there is authority in this district for submis-
sion of an amicus brief on invitation from the court when the
participation of a government agency “would probably be very
helpful to the resolution of the issues before {the court],”
A-60
Degregorio v. O’Bannon, 86 F-.R.D. 109, 120 (E.D.Pa. 1980)
(Pollak, J.); and
WHEREAS, because plaintiffs contend that the state reg-
ulations submitted to the EPA have become part of Pennsylva-
nia’s SIP under the Clean Air Act, it would be helpful to me to
hear the EPA's position on the matter; and
WHEREAS, the EPA may, if it wishes, submit an amicus
brief on the issues in this case that affect it. Primarily, the
EPA’s views regarding the agency's approval of state odor
emission regulations and enforcement of such regulations
under the Clean Air Act are invited; it is therefore
Ordered that request is made and leave is granted to the
Environmental Protection Agency of the United States, if it so
desires, to file a brief within thirty (30) days from this date, as
amicus curiae on the pending motion of the defendant to
dismiss the complaint.
BY THE COURT:
/s/
Donald W. VanArtsdalen, S.J.
February 19, 1985
A-61
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CONCERNED CITIZENS OF )
BRIDESBURG, )
et al., )
Plaintiffs, )
)
' Civil Action No. 85-14
PHILADELPHIA WATER )
DEPARTMENT, )
et al., )
Defendants. )
)
BRIEF OF THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY AS AMICUS CURIAE
This Court's Order of February 19, 1985 requested and
granted leave to the United States Environmental Protection
Agency (“EPA”) to file a brief as amicus curiae on defendants’
pending motion to dismiss the complaint. Specifically, the
Court solicited EPA’s views regarding EPA’s approval of state
odor emission regulations and enforcement of such regula-
tions under the Clean Air Act, 42 U.S.C. §§ 7401-7626
(1982).
In response to the Court's Order of February 19, 1985,
EPA now submits this brief, advising the Court that (1) EPA
approved the state odor emission regulations at issue here in
1973, thereby making them part of the federally enforceable
State Implementation Plan for Pennsylvania, (2) this Court
lacks jurisdiction to review EPA's 1973 action, (3) EPA now
believes that these regulations should not be part of the Siate
Implementation Plan for Pennsylvania because they bear no
relation to attainment or maint«.ance of the National Am-
bient Air Quality Standards, and (4) EPA intends to propose to
delete the state odor emission regulations from the State
Implementation Plan for Pennsylvania.
A-62
I. FACTUAL BACKGROUND
On January 27, 1972, the Pennsylvania Department of
Environmental Resources (“DER”), on behalf of the Common-
wealth of Pennsylvania, submitted its State Implementation
Plan (“SIP”) to EPA for review and approval. Under section
110(a\(1) of the Clean Air Act, 42 U.S.C. § 7410 (1982), each
state must submit a SIP that provides for attainment and
maintenance of the National Ambient Air Quality Standards
(“NAAQS”). DER submitted a voluminous SIP that included
both the Commonwealth's odor emission regulation, 25 Pa.
Code § 123.31, and the City of Philadelphia's odor emission
regulations (hereinafter collectively referred to as the “state
odor emission regulations’ ).
EPA later approved the SIP submitted by DER. See 38
Fed. Reg. 32,893 (Nov. 28, 1973) (codified at 40 C.FR.
§ 52.2023). In doing so, EPA listed several provisions of the
SIP that it was not approving. These specific exceptions did
not include the state odor emission regulations. Thus, EPA's
action, on the face of it, approved the state odor emission
regulations as part of the Pennsylvania SIP.
On September 20, 1978, DER submitted to EPA a revi-
sion to the Pennsylvania SIP that, inter alia, modified the
state odor emission regulations by exempting agricultural
sources from the control requirements. See 40 C.FR.
§ 52.2020(c (21) (1984). EPA later approved this SIP revision.
See 45 Fed. Reg. 56,060 (Aug. 22, 1980).
Il. DISCUSSION
EPA followed notice-and-comment rulemaking proce-
dures in its approval of the 1972 Pennsylvania SIP. As part of
this procedure, EPA issued a public statement implicitly rec-
ognizing the state odor emission regulations as part of the
Pennsylvania SIP. See 38 Fed. Reg. 32,893 (1973); 40 C_FR.
§ 52,2023 (1984). In that sense, EPA approved the state odor
emission regulations as part of the Pennsylvania SIP.
Under section 307(b\ 1) of the Clean Air Act, any inter-
ested person may seek judicial review of final action taken by
EPA by filing a petition for review in the appropriate court of
A-63
appeals within sixty days after notice of such final action
appears in the Federal Register. 42 US.C. § 7607(b\1)
(1982); see, e.g., Harrison v. PPG Industries, Inc., 446 U.S
578 (1980); Action for Rational Transit v. West Side Highway,
699 F.2d 614, 616 (2d Cir. 1983) (per curiam).
Significantly, section 307(b\(2) expressly states that any
EPA action that could have been reviewed in this manner in
the court of appeals “shall not be subject to judicial review in
civil or criminal proceedings for enforcement.” 42 U.S.C
§ 7607(b) (1982). This limitation has been characterized as
jurisdictional and has been strictly construed. See Adamo
Wrecking Co. v. United States, 434 U.S. 275, 282, 285 ( major-
itv opinion), 291, 292 (Stewart, J., dissenting) (1978); Friends
of the Earth v. Carey, 552 F.2d 25, 34-35 (2d Cir. 1977); Getty
Oil Co. v. Ruckelshaus, 467 F.2d 349, 357-58 n.14 (3d Cir
1972), cert. denied, 409 U.S. 1125 (1973)
Because EPA’ 1973 approval of the Pennsylvania SIP
could have been reviewed in the court of appeals at the time
EPA took that action, it is not subject to judicial review in any
civil or criminal proceeding for enforcement. Thus, this Court
lacks jurisdiction to review EPA's 1973 approval of the Penn-
syivania SIP, including its approval of the state odor emission
regulations submitted as part of the Pennsvivania SIP
EPA recognizes the problem raised by its approval of the
state odor emission regulations. In reviewing SIPs, EPA is
governed by the criteria in section 110(a\(2) of the Clean Air
Act, which requires measures for the attainment and mainte-
nance of the primary and secondary NAAQS. In order for EPA
to approve a state rule as part of the SIP. the rule must
significantly control emissions that contribute, directly or in-
directly, to concentrations of pollutants for which an NAAQS
has been established. Yet the City of Philadelphia points out
here, and EPA agrees, that the state odor emission regulations
bear no relationship to the attainment or maintenance of any
NAAQS.
Because the state odor emission regulations are presently
part of the Pennsylvania SIP. by reason of EPAS 1973 ap-
proval, EPA now intends to propose deletion of these regula-
A-64
tions and to solicit public comment on whether they contrib-
ute In any way to the attainment or maintenance of any
NAAQS. Absent some showing that the odor emission regula-
ions contribute significantly to the attainment or mainte-
nance of an NAAQS, EPA intends to delete them from the
Pennsylvania SIP after reviewing the public comments. EPA
hopes to publish this proposal in the Federal Register in the
near future
We also note that the Commonwealth court revise its SIP to delet
the odor emission regulations without awaiting EPA action. EPA would be
required to approve such a revision under section 110(a\3\A) of the Clean
Aur Act so long as it met the statutory criteria applicable to SIP submissions
A-65
Il. CONCLUSION
For the reasons stated above, EPA submits that (1) the
state odor emission regulations became part of the Pennsylva-
nia SIP in 1973, when EPA approved them, and (2) EPA's
1973 approval is not subject to judicial review at the present
time. However, EPA now believes that these regulations
should not be part of the Pennsylvania SIP, because they bear
no relation to attainment or maintenance of the NAAQS, and
EPA intends to propose to delete the state odor emission
regulations from the Pennsylvania SIP
Respectfully submitted,
F. HENRY HABICHT II
Assistant Attorney General
Land and Natural Resources Division
EDWARD S. G. DENNIS, JR
United States Attorney
s/ MicHae. W. STEINBERG
MICHAEL W. STEINBERG
Assistant Chief
Environmental Defense Section
Land and Natural Resources Division
U.S. Department of Justice
PO. Box 23986
Washington, D.C. 20026-3986
202) 633-2219
JAMES G. SHEEHAN
Assistant United States Attorney
OF COUNSEL
ROBERT J. SMOLSKI
Office of Regiona! Counse!
Region III
U.S. Environmental Protection Agency
Philadelphia, Pennsylvania 19106
DATE: MARCH 20, 1985
A-66
CERTIFICATE OF SERVICE
This is to certify that on March 20, 1985, J caused copies
of the foregoing Brief of United States Environmental Protec-
tion Agency as Amicus Curiae to be served upon the following
by placing them in a U.S. Postal Service depository, first-class
postage prepaid:
Jerome Balter, Esquire
1315 Walnut Street
Suite 1632
Philadelphia, Pennsylvania 19107
Denise D. Colliers, Esquire
Deputy City Solicitor
One Reading Center
Sth Floor
1101 Market Street
Philadelphia, Pennsylvania 19107
James G. Sheehan, Esquire
Assistant United States Attorney
3310 U.S. Court House
601 Market Street
Philadelphia, Pennsylvania 19106
Robert J. Smolski, Esquire
Office of Regional Counsel
U.S. Environmental Protection Agency
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
/s/
Michael W. Steinberg
A-67
U.S. CONST. V AMEND.
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property, without due
process of law; nor shall private preperty be taken for public
use, without just compensation.
A-68
SECTION 110(a) OF THE CLEAN AIR ACT
§ 7410. State implementation plans for national
primary and secondary ambient air quality standards
(a) Adoption of plan by State; submission to Admin-
istrator; content of plan; revision; new sources;
indirect source review program; supplemental
or intermittent control systems
(1) Each State shall, after reasonable notice and public
hearings, adopt and submit to the Administrator, within nine
months after the promulgation of a national primary ambient
air quality standard (or any revision thereof) under section
7409 of this title for any air pollutant, a plan which provides
for implementation, maintenance, and enforcement of such
primary standard in each air quality control region (or portion
thereof) within such State. In addition, such State shall adopt
and submit to the Administrator (either as a part of a plan
submitted under the preceding sentence or separately) within
nine months after the promulgation of a national ambient air
quality secondary standard (or revision thereof), a plan which
provides for implementation, maintenance, and enforcement
of such secondary standard in each air quality control region
(or portion thereof) within such State. Unless a separate pub-
lic hearing is provided, each State shall consider its plan
implementing such secondary standard at the hearing re-
quired by the first sentence of this paragraph.
(2) The Administrator shall, within four months after the
date required for submission of a plan under paragraph (1),
approve or disapprove such plan or each portion thereof. The
Administrator shall approve such plan, or any portion thereof,
if he determines that it was adopted after reasonable notice
and hearing and that—
(A) except as may be provided in subparagraph (1)(i)
in the case of a plan implementing a national primary
ambient air quality standard, it provides for the attain-
ment of such primary standard as expeditiously as prac-
ticable but (subject to subsection (e) of this section) in no
Gil
A-69
case later than three years from the date of approval of
such plan (or any revision thereof to take account of a
revised primary standard); and (ii) in the case of a plan
implementing a national secondary ambient air quality
standard, it specifies a reasonable time at which such
secondary standard will be attained;
(B) it includes emission limitations, schedules, and
timetables for compliance with such limitations, and
such other measures as may be necessary to insure at-
tainment and maintenance of such primary or secondary
standard, including, but not limited to, transportation
controls, air quality maintenance plans, and preconstruc-
tion review of direct sources of air pollution as provided in
subparagraph (D);
(C) it includes provision for establishment and oper-
ation of appropriate devices, methods, systems, and pro-
cedures necessary to (i) monitor, compile, and analyze
data on ambient air quality and, (ii) upon request, make
such data available to the Administrator;
(D) it includes a program to provide for the enforce-
ment of emission limitations and regulation of the modifi-
cation, construction, and operation of any stationary
source, including a permit program as required in parts C
and D of this subchapter and a permit or equivalent
program for any major emitting facility, within such re-
gion as necessary to assure (i) that national ambient air
quality standards are achieved and maintained, and (ii) a
procedure, meeting the requirements of paragraph (4),
for review (prior to construction or modification) of the
location of new sources to which a standard of perfor-
mance will apply;
(E) it contains adequate provisions (i) prohibiting
any stationary source within the State from emitting any
air pollutant in amounts which will (I) prevent attain-
ment or maintenance by any other State of any such
national primary or secondary ambient air quality stan-
dard, or (II) interfere with measures required to be in-
A-70
cluded in the applicable implementation plan for any
other State under part C of this subchapter to prevent
significant deterioration of air quality or to protect vis-
ibility, and (ii) insuring compliance with the require-
ments of section 7426 of this title, relating to interstate
pollution abatement;
(F) it provides (i) necessary assurances that the
State will have adequate personnel, funding, and author-
ity to carry out such implementation plan, (ii) require-
ments for installation of equipment by owners or oper-
ators of stationary sources to monitor emissions from
such sources, (iii) for periodic reports on the nature and
amounts of such emissions; (iv) that such reports shall be
correlated by the State agency with any emission limita-
tions or standards established pursuant to this chapter,
which reports shall be available at reasonable times for
public inspection; (v) for authority comparable to that in
section 7603 of this title, and adequate contingency plans
to implement such authority; and (vi) requirements that
the State comply with the requirements respecting State
boards under section 7428 of this title;
(G) it provides, to the extent necessary and practica-
ble, for periodic inspection and testing of motor vehicles
to enforce compliance with applicable emission stan-
dards;
(H) it provides for revision, after public hearings, of
such plan (i) from time to time as may be necessary to
take account of revisions of such national primary or
secondary ambient air quality standard or the availability
of improved or more expeditious methods of achieving
such primary or secondary standard; or (ii) except as
provided in paragraph (3)(C), whenever the Administra-
tor finds on the basis of information available to him that
the plan is substantially inadequate to achieve the na-
tional ambient air quality primary or secondary standard
which it implements or to otherwise comply with any
A-71
additional requirements established under the Clean Air
Act Amendments of 1977;
(1) it provides that after June 30, 1979, no major
stationary source shall be constructed or modified in any
nonattainment area (as defined in section 7501(2) of this
title) to which such plan applies, if the emissions from
such facility will cause or contribute to concentrations of
any pollutant for which a national ambient air quality
standard is exceeded in such area, unless, as of the time
of application for a permit for such construction er modi-
fication, such plan meets the requirements of part D of
this subchapter (relating to nonattainment areas);
(J) it meets the requirements of section 7421 of this
title (relating to consultation), section 7427 of this title
(relating to public notification), part C of this subchapter
(relating to prevention of significant deterioration of air
quality and visibility protection); and
(K) it requires the owner or operator of each major
stationary source to pay to the permitting authority as a
condition of any permit required under this chapter a fee
sufficient to cover—... .
A-72
SECTION 304 OF THE CLEAN AIR ACT
§ 7604. Citizen suits
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any
person may commence a civil action on his own behalf—
(1) against any person (including (i) the United
States, and (ii) any other governmental instrumentality
or agency to the extent permitted by the Eleventh
Amendment to the Constitution) who is alleged to be in
violation of (A) an emission standard or limitation under
this chapter or (B) an order issued by the Administrator
or a State with respect to such a standard or limitation,
(2) against the Administrator where there is alleged
a failure of the Administrator to perform any act or duty
under this chapter which is not discretionary with the
Administrator, or
(3) against any person who proposes to construct or
constructs any new or modified major emitting facility
without a permit required under part C of subchapter I of
this chapter (relating to significant deterioration of air
quality) or part D of subchapter I of this chapter (relating
to nonattainment) or who is alleged to be in violation of
any condition of such permit.
The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce such an emission standard or limitation, or such an
order, or to order the Administrator to perform such act or
duty, as the case may be.
A-73
PROPOSED RULE
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
(EPA Docket No. AM045PA; A-3—FRL-2880-7]
Pennsylvania State Implementation Plan; Proposed Approval
of Revisions.
AGENCY: U.S. Environmental Protection Agency.
ACTION: Proposed rule.
Summary: EPA proposes to withdraw its former approval of
State and local odor emission control regulations as part of the
Pennsylvania State Implementation Plan (SIP). EPA believes
that these regulations should not be included in the Pennsyl-
vania SIP because they bear no relation to attainment and
maintenance of the National Ambient Air Quality Standards
(NAAQS).
The public is invited to submit comments on the matters
discussed here and EPA’s proposed action.
Date: Comments must be submitted on or before September
11, 1985.
Addresses: Copies of the relevant regulations and accom-
panying support material are available for public inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region III, Air Manage-
ment Division, 841 Chestnut Building, Eighth Floor, Phila-
delphia, PA 19107; Attn: Donna Abrams (3AM11).
For Further Information Contact: Donna Abrams
(3AM11) at the EPA. Region III address above or call (215)
597-9134.
All comments on the proposed action submitted within
30 days of publication of this notice will be considered and
should be directed to Mr. Glenn Hanson, Chief, PA/WV Sec-
tion at the EPA, Region III address above, EPA Docket No.
AMO45PA.
A-74
Supplementary Information: Under section 1 10(a)(1) of
the Clean Air Act, each state must submit to EPA an SIP that
provides for attainment and maintenance of the National
Ambient Air Quality Standards (NAAQS). On January 27,
1972, the Pennsylvania Department of Environmental Re-
sources (DER), on behalf of the Commonwealth of Pennsylva-
nia, submitted its SIP to EPA for review and approval. DER's
SIP submittal included the Commonwealth’s odor emission
regulation and the City of Philadelphia's odor emission regula-
tion (hereinafter collectively referred to as the “State odor
emission regulations’ ).
EPA initially approved portions of the Pennsylvania SIP,
via a national notice. on May 31, 1972 (See 37 FR 10889). In
this notice, EPA approved all portions of the State plans unless
they were specifically disapproved. These exceptions did not
include the State odor emission regulations. Therefore they
were approved by EPA as part of the Pennsylvania SIP.
EPA reaffirmed its approval of the Pennsylvania SIP, in-
cluding the State odor emission regulations, on November 23,
1973. See 38 FR 32893. In this notice, EPA approved Pennsyl-
vanias plan for attainment and maintenance of the national
standards except for specific portions which were listed in the
notice. These specific exceptions did not include the State
odor emission regulations.
On September 20, 1978, DER submitted to EPA a revi-
sion to the Pennsylvania SIP that, among other things, modi-
fied the state odor emission regulations by exempting agricul-
tural sources from the control requirements. See 40 CFR
52.2020(c)(21) (1984). EPA later approved this SIP revision.
See 45 FR 56060 (August 22, 1980).
EPA recognizes the problem raised by its approval of the
State odor esission regulations. In reviewing SIPs, EPA is
governed by tie criteria in section 110(a)(2) of the Clean Air
Act, which require measures for the attainment and mainte-
nance of the primary and secondary NAAQS. In order for EPA
to properly approve a State rule as part of the SIP, the rule
must have a significant relationship to attainment and main-
tenance of an NAAQS.
A-75
EPA believes that the State odor emission regulations
bear no significant relationship to the attainment and mainte-
nance of any NAAQS. In general, EPA believes that there is no
direct or indirect relationship between the State odor emission
regulations cited below and any criteria pollutant.
The regulations, pertaining to odor emission control,
which would be affected are:
(a) 25 PA Code Section 123.31—Odor Emissions;
(b) Regulation I (Philadelphia Air Management Code),
Section I(A)(3)—Air Contaminant;
(c) Regulation I (Phila. AMC), Section I(A)(4)—Air Pollu-
tion;
(d) Regulation | (Phila. AMC), Section I(A)(5)—Air Pol-
lution Nuisance;
(e) Regulation I (Phila. AMC), Section I(A)(25)—Odor;
(f) Regulation I (Phila. AMC), Section X—Compliance
with regulations of Pennsylvania Air Quality Board;
(g) Regulation XI (Phila. AMC), Section III(C)—Odor
Emissions
Because the State odor emission regulations are presently
part of the Federally approved Pennsylvania SIP, EPA is now
proposing deletion of those portions of these regulations per-
taining to odor emission controls and is soliciting public com-
ments on whether the odor emission control regulations con-
tribute in any way to the attainment or maintenance of any
NAAQS. Absent some showing that the odor emission regula-
tions contribute significantly to the attainment or mainte-
nance of an NAAQS, EPA intends to delete them from the
Pennsylvania SIP.
Interested parties are invited to submit comments on this
action. EPA will consider comments received within 30 days
of publication of this notice.
Under 5 U.S.C. section 605(b), | certify that this SIP
revision will not have a significant economic impact on a
substantial number of small entities. (See 46 FR 8709.) The
action, if promulgated, would if anything, provide relief from
regulatory burdens.
A-76
The Office of Management and Budget has exempted
this rule from the requirements of section 3 of Executive
Order 12291.
List of Subjects in 40 CFR Part 52
Intergovernmental relations, Air pollution control.
Ozone, Sulfur oxides, Nitrogen dioxides, Lead, Particulate
matter, Carbon monoxide, Hydrocarbon.
Authority: 42 U.S.C. 7401-7642.
Dated: July 9, 1985.
Stanley L. Laskowski,
Acting Regional Administrator.
(FR Doc. 85—19106 Filed 8—9—85: 8:45 am)
A-77
FINAL RULE
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
(A-3-FRL-3018-2; EPA Docket No: AMO45PA)
Commonwealth of Pennsylvania; Approval of Revision to the
Pennsylvania State Implementation Plan
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
Summary: EPA is today withdrawing its former approval of
State and local odor emission control regulations as part of the
Pennsylvania State Implementation Plan (SIP). EPA believes
that these regulations should not be included in the Pennsyl-
vania SIP because they bear no significant relation to attain-
ment and maintenance of the National Ambient Air Quality
Standards (NAAQS).
Effective Date: June 19, 1986.
Addresses: Copies of the revision and accompanying docu-
ments are available during normal business hours at the
following office: U.S. Environmental Protection Agency, Re-
gion III, Air Management Division, 841 Chestnut Building,
8th Floor, Philadelphia, PA 19107. Attn: Donna Abrams.
For Further Information Contact:
Donna Abrams (3AM11) at the EPA.
Region III address above or call (215) 597-9134.
Supplementary Information: Under section 110(a\1) of
the Clean Air Act, each State must submit to EPA a SIP that
provides for attainment and maintenance of the National
Ambient Air Quality Standards (NAAQS). On January 27,
1972, the Pennsylvania Department of Environmental Re-
sources (DER), on behalf of the Commonwealth of Pennsylva-
nia, submitted its SIP to EPA for review and approval. DER'’s
SIP submittal included the Commonwealth's odor emission
\-78
regulation and the City of Philadelphia's odor emission regula-
tion (hereinafter collectively referred to as the “State odor
emission regulations.” )
EPA initially approved portions of the Pennsylvania SIP
via a national notice on May 31, 1972 (See 37 FR 19889.) In
this notice, EPA approved all portions of the State plans unless
they were specifically disapproved. These exceptions did not
include the State odor emission regulations. Therefore, they
were approved by EPA as part of the Pennsvivania SIP
EPA reaffirmed its approval of the Pennsylvania SIP. in-
cluding the State odor emission regulations, on November 23.
1983. (See 38 FR 32893). In this notice, EPA approved Penn-
sylvanias plan for attainment and maintenance of the na-
tional standards except for specific portions which were listed
in the notice. These specific exceptions did not include the
State odor emission regulations
On September 20, 1978, DER submitted to EPA a revi-
sion to the Pennsylvania SIP that, among other things, modi-
fied the State odor emission regulations by exempting agricul-
tural sources from the control requirements. See 40 CFR
92.2020(¢c (21) (1984). EPA later approved this SIP revision
See 45 FR 56060 (August 22, 1980)
EPA recognizes the problem raised by its approval of the
State odor emission regulations. In reviewing SIPs, EPA is
governed by the criteria in section 110(a)(2) of the Clean Ain
\ct, which require measures for the attainment and mainte-
nance of the primary and secondary NAAQS. In order for EPA
to properly approve a State rule as part of the SIP. the rule
must have a significant relationship to attainment and main-
tenance of a NAAQS
EPA believes that the State odor emission regulations
bear no significant relationship to the attainment and mainte-
nance of any NAAQS. In general, EPA believes that there is no
direct or indirect relationship between the State odor emission
regulations cited below and any criteria pollutant
EPA is listing in this final action additional state and city
statutory and regulatory citations which were not included in
E.PAS proposed deletions published om August 12, 1985 (50
FR 32451). These additional citations regulate or control odor
emissions. EPA does not believe that the statutory citations
were approved as part of the Pennsylvania SIP. However, to
eliminate any doubt in the matter, and to the extent that they
relate to the control of odors, EPA is listing these statutory
provisions in its withdrawal of approval
lhe additional regulations added in this final action were
inadvertently omitted from EPA's proposed action. EPA be-
lieves that its proposed action provided sufficient notice that
all state and local regulations relating to the control of odors
were being proposed to be deleted from the Pennsylvania SIP
In addition. section 553(b\(B) of the Administrative Proce-
dure Act, 5 U.S.C. 553(b)(B), provides that notice of rulemak-
ing is not required when an agency for good cause finds that
notice thereon is impracticable or unnecessary. EPA finds that
additional notice is unnecessary here because the Agencys
notice (50 FR 32451) generally proposed deletion of all regula-
tions which are related to the control of odors, even though
the actual list of regulations have inadvertent omissions. EPA
provided extended comment period on the issue of whether
inv significant relationship could be established between the
State odor emission regulations and the attainment or mainte
nance of any NAAQS. The public had the opportunity to
comment on this general issue, with the obvious understand
ing that all odor emission controls would be deleted if such a
relationship was not established. As discussed below, no rela
tionship was established. Therefore, EPA is withdrawing its
approval of all State odor emission regulations which relate to
the control of odors. In light of the above, a new comment
period concerning the additional statutory and reguiatory ci
tations contained in this final action would be wholly super
fluous
lhe statutes and regulations pertaining to odor emission
control which will be affected are
§ 4003/4) (deletion of “odor” trom definition
§ 400315) (deletion of reference to odors from
definition
A-80
(3) Philadelphia Air Management Code § 3-102(3) (dele-
tion of “odors” from definition);
(4) Philadelphia Air Management Code § 3-102(25) (de-
letion of definition);
(5) 25 Pa. Code § 121.1 (deletion of reference to odors
from definitions);
(6) 25 Pa. Code § 129.14(b)(2) (open burning opera-
tions);
(7) Regulation V (Phil. AMC) Section X—Odors;
(8) 25 PA Code § 123.31—Odor Emissions;
(9) Regulation I (Phila. AMC), Section I (A)(3)—Air
Contaminant (deletion of reference to odors in definition);
(10) Regulation I (Phila. AMC), Section I (A)(4)—Air
Pollution (deletion of reference to odors in definition);
(11) Regulation I (Phila. AMC), Section I (A)(5)—Air
Pollution Nuisance (deletion of reference to odors in defini-
tion);
(12) Regulation I (Phila. AMC), Section I (A)(25)—Odor
(deletion of definition);
(13) Regulation I (Phila. AMC), Section X—Compliance
: with regulations of Pennsylvania Air Quality Board (deletion
of references to odors);
(14) Regulation XI (Phila. AMC), Section III(C)—Odor
| Emissions.
| Because the State odor emission regulations are presently
part of the federally approved Pennsylvania SIP, EPA proposed
deletion of these regulations on August 12, 1985 (50 FR
32451). EPA provided an extended sixty-day comment period
to solicit public comments as to whether any significant rela-
tionship could be established between the State odor emission
regulations and attainment or maintenance of any NAAQS.
Absent this showing, EPA proposed to delete these regulations
from the Pennsylvania SIP. As a result of the Notice of Pro-
* posed Rulemaking, EPA received approximately forty-five
(45) responses with comments. Six (6) of these responses
with comments were in support of EPA’s proposed action and
are detailed in the Technical Support Document for this
A-8]
Rulemaking action. The remainder of the responses with
comments were in opposition to EPA’s proposed action. These
comments are discussed below.
Public Comments
1. Comment
The federal odor regulations are the only means that we
have for controlling polluting emissions such as sulfur diox-
ide, nitrogen oxides, volatile organic compounds (VOC's)
which are precursors to ozone formation and other hazardous
air pollutants such as benzene and hydrogen sulfide.
Response: The federal odor regulations are not the only
means for controlling polluting emissions such as those men-
tioned above. There are various regulations which are used to
control polluting emissions, such as those mentioned above,
other than odor regulations. With regard to Pennsylvania's
regulations which are part of the SIP, sulfur compound emis-
sions are regulated under section 129 of the Pennsylvania Air
Resource Regulations. Where odor-producing hazardous air
pollutants are identified, they have been and may be regulated
through specific numerical standards issued under section
111 (New Source Performance Standards) or 112 (National
Emission Standards for Hazardous Air Pollutants) of the
Clean Air Act or through State and local laws and ordinances.
The City’s Air Management Regulation VI is the foremost
example in this region of exactly this type of local regulation
of toxic air contaminants. Ninety-nine (99) substances have
been individually listed, and the City’s Department of Health
has adopted numerical, health-based guidelines for these
substances in the ambient air. Regulation VI authorizes the
City to withhold permits from facilities emitting toxic con-
taminants at levels that pose a health hazard based on these
guidelines.
Additionally, the City’s Air Management Regulation III
covers the control of emissions of oxides of sulfur compounds.
Regulation VII controls the emission of nitrogen oxides from
stationary sources, and Regulation V regulates the emissions
as — — ; —
A-82
of VOC's. These hydrocarbon regulations together with the
DER regulations do provide an enforceable remedy to protect
the public health.
2. Comment
Odor is an indication of human carcinogens.
Response: Odor is not necessari y an indication of human
carcinogens. Many harmless substances cause odors. Addi-
tionally, a substance may be carcinozenic but odorless.
3. Comment
If the EPA deletes the odor regulations, there will be no
meaningful right of citizens to enforce the odor regulations
because the Pennsylvania Air Pollution Control Act does not
provide for attorney fees in citizen lawsuit cases.
Response: While EPA is sensitive to this issue, we cannot
use this as a basis for retaining the odor regulations in the
Pennsylvania SIP.
4. Comment
EPA’s proposed action is arbitrary and capricious. EPA
has the burden of justifying its intent to withdraw.
Response: EPA is merely taking corrective action here to
remedy an oversight in inadvertently approving the odor reg-
ulations. The Agency has never found any significant rela-
tionship between the control of odors and any NAAQS, but it
has permitted the public the right to provide comments on
this issue during an extended comment period.
5. Comment
EPA’s proposed action is an abuse of discretion. Pennsyl-
vania may include control measures in its SIP that are stricter
than those required by EPA.
Response: EPA’s proposed action is not an abuse of discre-
tion. Although Pennsylvania may include control measures in
its SIP that are stricter than those required by EPA, it has not
been demonstrated that odor control constitutes a stricter
control measure or that the control of odor relates to the
attainment of an NAAQS.
A-83
6. Comment
The connection between odors and the criteria pollutants
is easily made. There are odors directly associated with sulfur
dioxide, nitrogen dioxide, and with hydrocarbons which are
an ozone precursor.
Response: There are odors associated with sulfur dioxide
and nitrogen dioxide. The odor threshold for sulfur dioxide is
approximately | ppm. This threshold value is over seven
times greater than the 24-hour standard for SO, (0.14 ppm)
and thirty-three times greater than the annual standard (0.03
ppm). The odor threshold for nitrogen dioxide is approx-
imately 5 ppm. This level is one hundred times greater than
the national standard for NO, (0.05 ppm). Therefore, if EPA
were to allow levels of SO, and NO, necessary to reach the
threshold at which an odor could be detected for each of these
pollutants, the levels would be well in excess of the national
standards. If odor regulations were used as a backup to deter-
mined excessive concentrations of these two pollutants, it
would be a much less stringent standard than those already in
place. Additionally, these regulations would have to be less
general and more specific to levels of SO, and NO, and
quantifiable reductions in the levels of these pollutants.
With regard to odors as they pertain to hydrocarbons
which are ozone precursors, EPA has not been able to estab-
lish any relationship, nor have any of the commentors pro-
vided any information which shows any technical correlation
between controlling odor levels of hydrocarbons and reduction
in ozone levels.
7. Comment
The odor regulations assist Philadelphia and Pennsylva-
nia in monitoring VOC emissions from major sources and in
controlling VOC emissions from minor sources.
Response: Odor regulations may be used to trace a source
of an odor complaint. But once the source of the odor has been
established, the odor regulation itself would not be used to
reduce levels of VOCs. The Pennsylvania VOC regulations,
A-84
which are based on health and welfare effects levels of the
compounds in question, would be applied.
The deletion of the odor regulations from the Pennsylva-
nia SIP would not preclude Philadelphia and Pennsylvania
from continuing to utilize these regulations as a tool to moni-
tor and control VOC levels.
8. Comment
If EPA deletes 25 Pa. Code 123.31(a) and the Philadel-
phia Air Management Regulation XI, section 111(c), which
are aimed at preventing odor emissions from incinerators,
citizens will have no meaningful means for preventing mal-
odorous, unhealthful incinerator operations. These operations
require incinerator operators to operate their facilities at a
minimum of 1200°F. It is now known that temperatures above
1700°F are desirable in preventing the formation of dioxins
and furans.
Response: The deletion from the SIP of the odor emission
control regulations weuld not preclude the City and DER from
enforcing their regulations. However, with specific respect to
dioxins and furans, these compounds are being considered to
be listed as hazardous air pollutants. If and when these con-
taminants are listed, regulations would be developed in order
to control the formation of these pollutants. The formation of
dioxins and furans is a very complex mechanism with many
variables other than temperature involved in their formation.
The odor regulations should not be perceived as a means for
controlling dioxin and furan formation.
9. Comment
The control of Total Reduced Sulfur (TRS) emissions is
related solely to reduction of odors.
Response: The regulations governing TRS emissions are
based on the health and welfare effects of certain levels of
hydrogen sulfide, not on the odor threshold level (which is
much lower) for hydrogen sulfide.
A-85
Conclusion
EPA’s decision to adopt this revision is based on a deter-
mination, after a thorough review of the public comments,
that there is no significant relationship between odor emis-
sion control regulations and attainment or maintenance of
any NAAQS. These regulations were inadvertently approved
as part of Pennsylvania's SIP and, therefore, EPA is today
deleting these regulations from the Pennsylvania SIP. Addi-
tionally, EPA’s withdrawal is consistent with prior admin-
istrative rulemaking. EPA declined to approve a SIP provision
governing odor on May 12, 1981 that had been submitted by
Guam (46 FR 26303).
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.